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Mutually-Reinforcing Transgressions of Justice in Large Scale Land Acquisitions in the 'Public Interest'

Jennifer Clare Mohamed-Katerere

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Abstract (ln)justice describes land governance in the global south: For centuries, accumulation of wealth has occurred through land dispossession, particularly of indigenous people, peasants and pastoralists, increasing vulnerabilities and decreas ­ ing capabilities. The wave of acquisitions from the mid-2000s though focused on the public interests of 'development,' ' human security' and 'conservation' hollows out rights, violating the fundamentals of justice. These acquisitions are for food, fuel and feed, mining, logging, carbon and coercive conservation. Using a multidimensional analysis, the chapter explores the injustice of these acquisitions, identifying layers of mutually reinforcing transgressions. It considers how power and dominant develop­ ment and conservation cultures creates unjust land governance. At the heart of this is the promotion of markets through extractivism over and above the pursuit of social­ ecological justice. Using a justice framework, embedded in redistributive justice, it demonstrates how these acquisitions impact on recognition, inclusion, engagement, distribution of costs and benefits, and structural opportunities of rural citizens. Transitions in the control of production, increased land inequality, and discrimina­ tory distribution of public resources fostered by these interactions impacts on development futures as rural political- and economic-scapes are redefined.

1 Introduction

The mid-2000s marked an unprecedented spike in large-scale land acquisitions of millions of hectares (mha) of land in the global south for food, fuel and feed crops­ which is well documented-as well as for mining, coercive conservation, climate

J. C. Mohamed-Katerere (12'2l) IUCN Commission on Environment, Economics and Social Policy (CEESP), Johannesburg, South Africa

World Commission on Environmental Law (WCEL), Johannesburg, South Africa

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 H. Ginzky et al. (eds.), International Yearbook of Soil Law and Policy 2020/2021 , International Yearbook of Soil Law and Policy 2020, https://doi .org/10.1007 /978-3-030-9634 7-7 _2

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18 J. C. Mohamed-Katerere

mitigation, ecotourism and real estate from rural communities, including indigenous people. 1

These acquisitions are different from earlier waves in that contemporary interest is, more often than not, about extracting value from land for biofuels, conservation, carbon sequestration and accessing water achieved through new financial mecha­ nisms, commodification and marketization rather than occupation or ownership. 2

This is in contrast to earlier agricultural models that focused on integration of small producers into national economies.3 By building on colonial legacies and narratives of modernity, swaths of territory are effectively moved from the control of small­ holders (and also nations) to global capital4-amounting to a foreignization of space.5 Transnational investors at inter- and intra-regional levels are key acquirers, although in some places national investors are also engaged.6 For example, by the beginning of 2019, European Union (EU) based companies have been involved in 616 land deals encompassing 23 Mha in the global south. 7 Agrawal et al. estimate that more than 40 Mha of agricultural land in over 35 lower and middle income countries were grabbed. 8

This trend is significant because the loss of control of land productivity by rural citizens has implications for futures in the global south including for economies, rural livelihoods, vulnerability to climate change, citizen engagement and account­ ability. These approaches are likely to escalate as markets in environmental goods mature, new global conservation and climate goals are set, and other neoliberal development approaches that encourage the increasing commodification of nature, like the green economy, take hold. 9 Current indications are that large conservation organizations and states, as part of the Convention on Biological Diversity's Post- 2020 framework, will demand land enclosures to protect 30% of the world's land, water and oceans by 2030, in an effort to roll back the rate of species extinction which is now 100-1000 times faster than the historical background rate 10 and restore so called 'human-non-human justice'. 11 The High Ambition Coalition for Nature and People embracing more than 85 states, mainly from the global north and Latin America are key in driving this approach. 12 While some argue that this will convert

1 Agrawal et al. (2019) and Borras Jr et al. (2020). 2 Sikor et al. (2013) and Benjaminsen and Bryceson (2012). 3 Moyo and Yeros (2005). 4 Kumar (2020) and McKay (2017). 5 Zoomers (2010). 6 Cotula et al. (2014). 7 Borras Jr et al. (2020). 8 Agrawal et al . (2019). 9 Larson et al. (2013) and Fairhead et al. (2012). 10Bhola et al. (2021 ). 11 Kopnina (2018). 12 https :/ /www .hacfomatureandpeople.org.

Mutually-Reinforcing Transgressions of Justice in Large Scale ... 19

private resources into public goods with intergenerational benefits, 13 others are concerned that because the success of this ambition is dependent on community and indigenous peoples lands, already vulnerable people will be further marginalized as resources are privatized or co-managed and become available for tourism and other commercial use. 14 Others claim that by using diverse land based conservation mechanisms the rights of indigenous people to land will be recognized. 15 Given these diverse views it is important to evaluate these acquisitions through a justice lens and consider what this means for self-determination, a fundamental right in international law.

The main thesis of this chapter is that these land acquisitions although legal are inherently unjust. The term, land and green grabs (or grabs) is used to denote this capture of control over land and natural resources through processes that fall short of the fundamentals of justice or violate human rights. 16 Following this Introduction, Sect. 2 identifies the main forms of acquisition and their consequences of rural political- and eco-scapes. Section 3 explores how these acquisitions are shaped by vast power differentials in governance and unequal access to institutions-law, policies, treaties and contracts-from global to local planes. Section 4 employs a justice framework to elaborate on how well-established dimensions of justice find expression in the processes and outcomes of grabs, including for livelihoods, wellbeing, resilience of rural citizens. Section 5 concludes by summarising the main findings.

2 Acquisition and Their Consequences for Rural Land Economies

Land acquisitions are unevenly distributed among and within regions and countries, with agro-ecological qualities, infrastructure, water abundance and political influ­ ence being important factors. 17 In highly-targeted countries the scale of acquisition is staggering-in Tanzania, for example, a third of land is included in the Southern Agricultural Growth Corridor of Tanzania and as is typical this combines conser­ vation areas, intensive agriculture and infrastructure development. 18 The extent of recent grabs for mining and conservation is poorly documented and it is seldom accounted for in aggregate studies. But evidence suggests that investments in mining

13 Kopnina (2018) and Bhola et al. (2021 ). 14 Gamett (2018). 15Weeber (2016). 16 Intemational Land Coalition (20ll ), Borras Jr and Franco (2012), Franco and Borras Jr (2019), Fairhead et al. (2012), and Holmes (2014). 17 Borras Jr et al. (2011), Borras Jr and Franco (2012), and Zoomers (2010). 18 Busscher et al. (2018).

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have rocketed as global economic volatility increases the demand for secure invest­ ments, such as gold. 19 In Africa, a fivefold increase in foreign direct investment between 2000 and 2012 is largely attributable to extractive industries. 20 In response to climate change a market for carbon, which serves to 'offset' greenhouse gas emissions from industrialized countries by averting deforestation or reforesting in countries of the global south in return for payment has developed-and this con­ tributes to grabbing.2 1

The vast majority of grabs are legal-lawful acquisition of rights in land occur through purchase, investments, lease, concessions, rights to conserve and manage biodiversity, carbon sequestration schemes and re-designations of state land includ­ ing forests, protected areas and communal lands under common property or indi­ vidual use rights. 22 For example, in Cameroon, the government de-gazetted forest land to make way for palm oil production. 23 In Argentina, multi-millionaire philan­ thropists acquired land in the protected area oflbera National Park. 24 Although legal, inequality in power and in negotiations underpin these25 -potentially compromising the fundamentals of free and fair consent that underpins contract law. 26

Illegality extends to the use of coercion and duress, whether veiled, subtle or violent, to obtain consent to acquisitions that would otherwise be legal as this violates the requirement for consent to be free and fair. 27 A striking example of veiled coercion is the touting of private investment as the only support available to communities thus inducing them to cooperate.28 Investors routinely target regions with recent histories of violent conflict or resettlement as this triggers land or asset enclosure, as has been the experience in Cambodia and Laos. 29 In Nicaragua landholders were willing to forfeit land to settle debts. 30 Unlawful acquisition also occurs through forced reclassification of protected areas, that have been deliberately and illegally deforesting, as agricultural land. 3 1 In Brazil, the legislature diluted constitutional protection of forests after the national administration had signalled impunity for illegal deforestation by land investors. 32 When land tenure is insecure government authorities and traditional leaders are able to assert control over lands

19 Sikor et al. (2013) and German et al. (2013). 20Kinda and Thiombiano (2020). 21 Franco and Borras Jr (2019). 22 Hall (2011 ) and Holmes (2014). 23 Green Development Advocates (2021 ). 24 Busscher et al. (2018). 25 Oberlack et al. (20 I 6). 26 Cochrane (2016). 27 Cochrane (2016). 28 Li (2014). 29 Dwyer (2014). 30Oberlack et al. (2016) and Gomez et al. (2015). 3 1 BBC (2021), Oldekop et al. (2020), and Busscher et al. (2018). 32 Carrero et al. (2020).

Mutually-Reinforcing Transgressions of Justice in Large Scale ... 21

beyond their legal authority and this contributes to illegal acquisition. 33 Political disregard for the law, especially by governments, public authorities and national elites in recipient countries underpins grabs, creates impunity and clouds transpar­ ency and accountability.34 The risk of being ousted politically or convicted along with potential benefits to the individual or economy influences the extent of this kind of corruption.35

Rural citizens respond to these new acquisitions in diverse ways-both challeng­ ing and accommodating them including by negotiating benefits and roles for them­ selves.36 The intrusion by investors into areas where rural citizens have rights can moreover contribute to conflict, illegality and injustice. Most of the land targeted belongs to or is used by local communities, including indigenous people, small farmers and pastoralists, although this is less so in Latin America where frontier forest land is most targeted.37 Globally, customary land tenure accounts for 50% of all land and supports 2.5 billion people, however this is poorly recognized-in 2015 national laws protected only 10% of land as belonging to communities38 notwith­ standing the recognition of local communities rights in international law .39 Indige­ nous Peoples have tenure rights over at least 38 Mkm2 in 87 countries-this is more than a quarter of the worlds surface.40 The exclusion of local communities from investor-state agreements exposes their lands to investment and grabbing.41

Dell'Angelo et al. in a multi-study analysis across 27 countries find that 55% of acquisitions happened on common property, 13% on land subject to more than one property regime, 11 % on state land and only 5% on private property.42

The underpinning narratives justifying acquisitions on the grounds that large swaths of land are marginal, underutilized or remote belies the reality: some 35% of land deals are on densely populated and easily accessible cropland, while 26% is on populated, moderately accessible grasslands.43 Only 34% of grabs occur in remote forestlands with lower settlement. 44 Dell' Angelo et al. suggest that grabs impact smallholders in 61 % of cases, indigenous people in 20% of cases and pastoralists in 16% of cases.45

33 Schoneveld (2017), Cotula et al. (2014), and German et al. (2013). 34 Kolstad and S¢reide (2009). 35 Ranjan (2018) and Hitcher (2010). 36 Green and Adams (2015) and Hall et al. (2015). 37 Borras Jr et al. (2011) and Dell ' Angelo (2017). 38 Notess et al. (2020). 39 Anonymous (2016). 40Gamett (2018). 4 1 Perrone (2019), Sachs (2020), and Cotula (2020). 42 Dell'Angelo (2017). 43 Messerli et al. (2014). 44 Messerli et al. (2014). 45 Dell 'Angelo et al. (2017).

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Land set aside for the protection for biodiversity is also impacted: Messereli et al find that 34% of the deals overlap with protected areas, while 10% have more than half of their buffer area within protected areas.46 The trend to converting forests and protected areas is global and especially evident in Latin America where many investments occur in these areas including by well-established philanthropists and investment companies.47 Globally there is an increase in protected area downgrades for mining. In Mexico, by 2010, mining concessions were given in 63 of the nation's 169 protected areas.48 In 2015, the Democratic Republic of Congo adopted the Hydrocarbon Code which systematically downgraded all protected areas in the country, including the Virunga and Salonga National Parks to enable oil exploration.49

Conversely, grabs may also occur to bring new land under globally-recognized conservation regimes. so The transfer of control from de facto or de Jure land holders to private actors, including conservation organizations and business entities, also occurs through other forms of expropriation in which title is not acquired, such as joint ventures and co-management.5 1 This enclosure of community and public lands may occur for different kinds of protected areas, including private protected areas, avoided deforestation and climate change mitigation in exchange for some form of financial benefit.52 There are also examples of large scale mining adopting such approaches with tripartite arrangements among artisanal miners, villagers and the state. 53

Many of these so-called win-win arrangements are premised on the understanding that the State is the landowner, hence communities are engaged as co-beneficiaries or in management rather than as owners.54 Frequently a trade-off is made between being granted 'fair and equitable' benefits while recognition and self-determination are denied. 55 In Indonesia, a community whose consent was not obtained for a new national park rejected an offer of benefits from authorities as the community feared that this would be construed as support for the park and acceptance of their non-recognition.56 Elsewhere local communities may acquiesce or struggle to define approaches from which they are able to glean benefits, including a cash income and

46Messerli et al. (2014). 47 Borras Jr and Franco (2012), Ojeda (2012), Green Development Advocates (2021 ), and Busscher et al. (2018). 48 Napoletano and Clark (2020) and Armendariz-Villegas et al. (2015). 49 Qin et al. (2019). 5°Fairhead et al. (2012), Benjaminsen and Bryceson (2012), and Napoletano and Clark (2020). 5 1 Hall (2011 ), Murombedzi (2010), Benjaminsen and Bryceson (2012), and Snyman and Spenceley (2019). 52 Busscher et al. (2018) and Hall (2011 ). 53 de Jong and Sauerwein (2021). 54 Myers and Mumu (2015), Creado (2008), and Chiaravalloti (2019). 55 Benjaminsen and Bryceson (2012). 56Myers and Mumu (2015).

Mutually-Reinforcing Transgressions of Justice in Large Scale .. . 23

better terms of engagement.57 In southern Africa, and elsewhere, community based natural resource management (CBNRM) and other co-management approaches connecting environmental management to economic activities, such as eco-tourism, were motivated as an approach to strengthen local participation and empowerment through decentralization and to reverse adverse consequences of coercive conservation while protecting biodiversity.58 However, the failure to create institutions that recognize communities as owners, has meant that in practice co-management and CBNRM frequently replace local de facto control with gover­ nance by local 'representatives,' donors and government departments.59 The role of the private sector as the most 'efficient' actor to run new business activities is key to this dispossession. These approaches are widespread including in Nepal, the Philip­ pines and Madagascar. 60 There are exceptions, such as Namibia, where the territorial interests of communities have been recognized as the institutional basis for more equitable conservation61 and in Nicaragua where in Bosawas the recognition of local land rights and community visions, rather than conservation, was the starting point. 62

Approaches that disenfranchise local communities can create conflicts over how land and nature is managed, valued and utilized. 63 This includes limiting or prohibiting traditional practice thus forcing communities to abandon local livelihood and conservation practices in favour of externally-sanctioned (coercive) conserva­ tion practices.64 In 2009, Agrawal estimated that displacement from conservation, although lower than that from development, has effected at least tens of millions of people. 65 The case study literature suggests that this number has continued to grow as local communities are displaced to make way for preservationist, state or private management.66 A further quandary is that the link between conservation and eco­ nomic activities may motivate additional grabs, particularly when protected areas create additional value. In the Philippines, the largest REDD+ project of 200,000 ha is also a hot spot for grabbing for real estate and tourism.67

Despite variations regionally and nationally, the discussion has illustrated that three broadly differentiated forms of land and green grabs are evident-these are

57 Green and Adams (2015) and Hall et al. (2015). 58 Dressler et al. (2010) and Green and Adams (2015). 59 Murombedzi (2010), Nelson (2010), and Benjaminsen and Bryceson (2012). 60 Dressler et al. (2010). 61 Nelson (2010). 62 Dressler et al. (2010). 63 Mohamed-Katerere (2014). 64 Busscher et al. (2018), Franco and Borras Jr (2019), and Myers and Mumu (2015). 65 Agrawal and Redford (2009). 66 Kashwan (2021 ), Chiaravalloti (2019), Lunstrum et al. (2016), Brockington and Wilkie (2015), Myers and Mumu (2015), Martin et al. (2015), Lunstrum (2015), and Creado (2008). 67 Franco and Borras Jr (2019).

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Table 1 Forms of land acquisition and the prevalence in different land use groups

Expropriation without Commercial ventures dispossession

Enclaves incorporating smallholders (Co-Management)

Acquisitions for X X food-feed-fuel

Expropriations for X X mining and logging

Biodiversity Conser- X X vation regimes

Carbon sequestration X X X initiatives

based on new patterns of control that emerge from these lawful processes of acquisition of land rights, that cut across different land use regimes (Table 1):68

1. Land and resource enclaves, that result in dispossession and displacement of communities. These enclaves (or enclosures) are associated with large agriculture estates, plantations, forests, protected areas and mines. Agribusiness, extractive industries, large conservation organizations, and development agencies are key actors.

2. Large commercial ventures, that engage smallholders in the value chain for example as contract farmers are associated with large agricultural estates, small farms and also forests. Agribusiness, conservation and development organiza­ tions key actors.

3. Expropriations-without-dispossession extinguish, restrict or limit de facto or de Jure entitlements of local communities, including indigenous people, in exchange for financial benefits and engagement in co-management. Large conservation organizations, development agencies, traditional, national or local government, the private sector and local organizations pursuing externally-driven conservation goals, are key actors.

The literature reveals that as a result of these grabs, three critical transitions have occurred that redefine rural economies, political-scapes and wellbeing.

First, the control over land and natural resources has shifted from smallholders to external actors. Investors and corporates have emerged as 'shadow sovereigns' while the role of large conservation organizations, development agencies and foreign governments play in shaping labour laws, finance, food and agriculture policy, conservation, taxes and trade, and dispute resolution is amplified. 69 The appropria­ tion of control festers unequal distribution of benefits and costs resulting in new proletarianization and new rural 'strong men,' reshaping political and economic

68 Hall (2011) and Hall et al. (2015). 69 George (2015).

Mutually-Reinforcing Transgressions of Justice in Large Scale ... 25

relations.70 Increasing economic differentiation further marginalizes women, youth, pastoralists and other vulnerable people and brings the newly dispossessed into a place of heightened vulnerability. 7 1

Second, changes in land mosaics create high land inequality that rolls back earlier gains made by smallholders in redistributive national law reforms.72 Concentrations of land holdings by a small number of powerful companies and actors, particularly in Latin America and South East Asia is evident,73 where about 10% of landholders control 75% of agricultural land while the poorest 50% control only 2% of land. 74

Land concentration exacerbates landlessness, elite capture, food insecurity, gender inequality and restricts access to credit for small farmers. 75 Declines in rural popu­ lation as a percentage of total population are most significant in south east Asia.76 In all regions, urbanization has adverse livelihood impacts including unemployment and slum dwelling, that compounds inequality, vulnerability and poverty traps.77

Consistent with historical trends, concentration also contributes to deforestation, environmental and soil degradation and, as discussed, the conversion of protected areas,78 and greenhouse gas emissions.79 Land clearance, for example, increases carbon emissions compared to historical deforestation rates and soil degradation, 80

which impacts immediately, but also has long-term climate change consequences. These social and environmental insecurities feed the occurrence, risk and magnitude of conflict and violence and reduce opportunities.8 1

Third, a significant reallocation of private and public funding away from community-focused agricultural extension and research to strengthen the small­ holder sector, to agribusiness research and development, infrastructure development and new conservation forms is taking place. 82 For example, the largest private funder of agriculture, the Bill and Melinda Gates Foundation, reallocated funding in favour of four large agriculture networks engaged in research, technology and implemen­ tation of pro-agribusiness policy, which receive approximately half of their grants for agriculture, and another 40% went to organizations in the US, UK and Europe. 83

Fiscal policies are being (re )designed to favour investment rather than the security of

7°Chimhowu (2019). 71 Oberlack et al. (2016) and Park (2018). 72 Hall (2011 ) and Kay (2015). 73 Kay (2015) and Borras Jr (2011 ). 74 Bauluz et al. (2020). 75 Guerena and Wegerif (2019), Carrero et al . (2020), and Mechiche-Alami et al. (2021 ). 76 Bauluz et al. (2020). 77 Kay (2015) and Nolte and Osterrneier (2017). 78 Schoneveld (2017) and de Toledo et al. (2017). 79 Liao et al. (2021). 80Liao et al. (2021). 81 Guerena and Wegerif (2019), Kay (2015), and Mohamed-Katerere (2014). 82 Moyo and Yeros (2005). 83 Grain (2014).

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poor and marginalized communities. 84 In Brazil, state sponsored support for agri­ business, including through credit, led to 3.7-fold increase in agricultural produc­ tivity between 1975 and 2010, leaving only 10% offarms responsible for 85% of the gross value of production.85 This reduction in support for smallholders reduces the opportunities available to smallholders.

3 The Injustice of Land Governance

Power asymmetries and coercion provide the canvas for grabbing in all regions, more so where land is subject to multiple claims86 and governance alienates rural citizens. 87 This makes it possible for powerful external actors, as discussed below, to influence development narratives and to use institutions to their advantage. 88 Rural citizens are not simply passive in these processes but actively engage-resisting or identifying opportunities to earn some benefit from the neo-liberalization of rural landscapes.89 While experiences vary among and within regions, as this part shows, these realities contribute to entrenching business and economic interests over other considerations of justice.90

The alignment of government interests with those of foreign and national inves­ tors, corporates, global financial and development organizations, global donors and philanthropists, and national and rural elites encourages investment in land. 91 Gov­ ernments reportedly supported investments in about 89% of cases by lowering barriers to investment and trade, identifying available land, deregulating land mar­ kets, and making land available through reclassification, re-designation and reallocation. 92 Potential contributions to development and foreign exchange earn­ ings are key motivations for this support.93 Global actors play a key role in shaping national land and acquisition policies: the multi-million-dollar World Bank led programme, Enabling the Business of Agriculture,94 for example, drives policy and legal reform to facilitate agribusiness. National laws and policies-such Ethiopia's Growth and Transformation Plan and the Zambia Lands Act 1995 which convert customary land to leasehold land are national tools facilitating the

84 Fairhead et al. (2012). 85 de Toledo et al. (2017). 86Dell 'Angelo et al. (2017), Cochrane (2016), and Schoneveld (2017). 87 Ece et al. (2017), Schoneveld (2017), Notess et al. (2020), and Dell'Angelo et al. (2017). 88 Scoones (2016), Benjaminsen and Bryceson (2012), and Holmes (2014). 89 Hall et al. (2015) and Green and Adams (2015). 90Brent (2015). 9 1 Dell' Angelo et al. (2017), Schoneveld (2017), Wolford et al. (2013), and Busscher et al. (2018). 92 Borras Jr et al. (2020), Wily (2014), Dell 'Angelo et al. (2021), and Busscher et al. (2018). 93 Cotula et al. (2014) and Schoneveld (2017). 94 World Bank (2013).

Mutually-Reinforcing Transgressions of Justice in Large Scale ... 27

'business of agriculture' by opening up land to foreign investment for export markets. 95

Policy convergences between investor and host countries are important96 -such as the multilateral and bilateral agreements for climate change mitigation.97 The EU biofuels policies are a major component of many land deals and are motivated by a desire to achieve energy security in Europe given an existing deficit and growing consumption, while reducing CO2 emissions98 as agreed in the Paris Agreement. In Zambia, between 2003 and 2016, companies from the EU expressed interest in 370,000 ha ofland to produce crops, that included biofuels.99 EU-based corporations engagement in land grabs is facilitated and legitimized by finance capital actively seeking investment in foreign resources, public-private partnerships that support investment in foreign resources and development financing institutions that back and facilitate grabs 100 and narratives of scarcity. 101 In Cambodia, Myanmar, Laos and Indonesia, where government climate policies focus on producing biofuels logging companies are able to secure concessions for biofuels production in hardwood forests. 102 Many companies abandon these lands once clearing operations are completed without planting for biofuels to reap quick gains and this results in massive deforestation-in Cambodia, nearly half of the area granted in concessions between 2000 and 2012 was forested in 2000. 103 In these contexts developed countries benefit disproportionately and at the expense of the global south. 104

Acquisitions occur in the context of the enduring legacy of colonial land histories in which land ownership and governance is contested and inequalities are linked to structural imbalances in opportunity and wealth. 105 In southern Africa, legal plural­ ism and associated tenure limits entitlements to use of local communities, while the state remains the owner or trustee. 106 In Nepal, a similar state-as-landlord relation­ ship means the power of government to grant, confiscate land or designate its use is absolute. 107 Habitually contemporary tenure regimes fail to incorporate layered tenure rights such as the seasonal or migratory rights of pastoralist that exist alongside rights of smallholders. 108 Land reform that formalized individual title in

95 Nolte and Ostermeier (2017) and Chilombo et al. (2019). 96Dell'Angelo et al. (2021 ). 97 Bi.ischer and Fletcher (2019) and Borras Jr and Franco (2018). 98 Carroccio et al. (2016). 99 Chilombo et al. (2019) and Cotula et al. (2014). 100Borras Jr et al . (2020). 101 Scoones et al. (2019). 102 Franco and Borras Jr (2019) and McAllister (2015). 103 Franco and Borras Jr (2019). 104Kotze (2019). 105 Cochrane (2016) and German et al. (2013). 106Cotula et al. (2014), Schoneveld (2017), and German et al. (2013). 107 Lai and Saumik (2014). 108 Davies et al. (2016).

28 J. C. Mohamed-Katerere

communal areas increased market influence over land and investor penetration of rural areas. 109 In sub-Saharan Africa between 1990 and 2017, 32 new land laws reformed rights on customary land inadvertently increasing local vulnerability to land and green grabbing. 110

Worldwide legal regimes for mining vest title of the subsoil in the state or define mineral exploitation as a public utility that takes precedence over other uses. In these circumstances, even secure community rights are at risk: in Chhattisgarh, India, the district administration rescinded approved community forest title to allow for coal mining. 111 The recognition of community rights to free, prior informed consent (FPIC) is beginning to gain ground in regional and national. In South Africa, for example, a high court decision related to the protracted claims of the Xolobeni community against the government and an Australian mining company ruled, in line with the principle of FPIC, that the community has a right to say no to the projects. 112

Many global land governance tools focus on ensuring 'responsible' investments, including certification, standards and safeguards against harm. 113 Safeguard approaches are not effective where recognition, enforcement, and the protection of economic and social rights are weak and political and economic power is highly uneven. 114 The core rights of indigenous peoples and local communities to recog­ nition and self-determination are often inadequately protected in responsible invest­ ment instruments; many global agreements focus on ensuring benefits accrue to communities but do not recognise local land rights 115 and frequently there is no appropriate international mechanism to include rural people in decision making exists. 11 6 Certification schemes are often criticized for prioritizing economic benefits over land rights. 117 The Forest Stewardship Council, for example, controversially certified industrial tree plantations on high value conservation land the Harvard Management Company acquired in Ibera, Argentina that resulted in displacement. 118

A further challenge with investment agreements is that communities are not party to them and thus not able to secure justice through the law. 119 Strengthening the

109 Chimhowu (2019) and Hall (2011). 11 °Chimhowu (2019). 111 Kashwan (2021). 11 2 Huizenga (2019). 11 3 Lynggaard and Ravborg (2020). 11 4 Ranjan (2017). 11 5 Lynggaard and Ravborg (2020). 11 6 Ranjan (2017). 117 Fortin and Richardson (2013). 11 8 Busscher et al. (2018). 11 9 Cotula (2020) and Perrone (20 19).

Mutually-Reinforcing Transgressions of Justice in Large Scale .. . 29

regulatory role of the state related to transnational corporations and other business enterprises is needed to protected the land rights of rural citizens. 120

4 Justice Depraved

Justice and law should not be conflated. Justice is concerned with what is right and wrong and provides a normative framing for evaluating land acquisitions and determining whether they are illicit or not, irrespective of their legality. Approaches to justice are not universal, thus the adoption of any justice framework privileges one world view over another. For example, the approach taken here is that the achieve­ ment of justice requires existing patterns of social privilege-based on class, gender, race and ethnicity-and their intersection with the allocation of power and resources, including the rules and policies that reproduces inequality and dominance, to be dismantled. In contrast, the assumption in neoliberal approaches is that justice is attainable through distributive benefits in wealth and food security from trickle­ down economics. 121

Drawing on environmental justice and political ecology, 122 the justice framework employed here (Fig. 1) includes the well-established dimensions of recognition, procedural justice, distributional justice, and capabilities. 123 In addition, as distrib­ utive justice is commonly interpreted as restricted to the allocation of benefits and costs, a fifth dimension of redistributive justice is added. Redistributive justice focuses on economic and material inequality in property, food, education, work and multiple other aspects of society and addresses how groups experience domi­ nation, alienation and social inequality-and it has at core the deconstruction of the underlying structure. 124

The failure to fulfil any of these dimensions compromises the ability to fulfil others, however, the way in which different remedies are implemented can have adverse outcomes for transformative justice. Despite tension between the different dimensions of justice, this should not detract from the ways in which the proposed dimensions can be mutually reinforcing. 125 For example, the struggle of indigenous people for recognition is closely aligned with struggles to improve material wellbeing while delinking this from inequitable extractivist productive systems and to pursue alternative values and pathways.

In each of these dimensions, human rights can make a significant contribution as they increasingly used to address the rights of collectives in public

120Kashwan (2021). 12 1 Kashwan (2021). 122 Suiseeya (2017), Sikor (2013), and Martin et al. (2016). 123 Dirth et al. (2020). 124Fraser (1995). 125 Young (undated).

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Fig. 1 Justice Framework

PROCEDURAL JUSTICE

Persona I security

Health

J. C. Mohamed-Katerere

ISTRIBUTIVE JUSTICE

nefit & cost sharing

Equity

Fairness

decision-making, although they have had limited value in addressing structural causes of inequality. 126 Human Rights applications have also failed to provide a sufficient methodology for addressing and curtailing abuses by corporates. 127 This is partly because they are not universally recognized as creating positive obligations and limitations on power of corporates and non-state organizations engaged in public decision-making, policy and related activities. 128 A further challenge is that many local communities and indigenous people are put in the precarious position of being pressurized to accept the solutions because they participated in certain processes. 129

The following sections elaborate on these dimensions, with examples of their expression in the law, policy or norms that frame land and green grabs. The discussion illustrates that these acquisitions, even when legal, are fraught with

126Myon (2014) and Kotze (2019). 127 Myon (2014). 128 Cotula (2020) and Huizenga (2019). 129 Hendry and Tatum (2016).

Mutually-Reinforcing Transgressions of Justice in Large Scale .. . 31

political tension among diverse actors of completing interests and worldviews. It is also apparent that these acquisitions place the burden of addressing food insecurity, conservation, climate change on rural people who are already politically marginal­ ized, vulnerable and frequently poor. 130

4.1 Redistributive Justice

Redistributive justice provides the foundation for transformation and creating the context in which citizens can achieve lives and futures they value. It requires a just distribution of resources and power that challenges the political-economic structure of society including associated patterns of inequality and inequity. Without addressing the economic marginalization and deprivation experienced by people as a group and the related norms of allocation, discrimination and privilege,13 1 the opportunities available to local communities to change their realities remain insuf­ ficient. Recognition provides the foundation for redistributive justice. 132

Land and green grabs counter redistributive justice by increasing land inequality and, in particular, seizing the land of local communities and indigenous people. While redistributive is not limited to restitution, this is an important remedy increas­ ingly ordered by courts in land rights cases of indigenous people. The landmark African Commission on Human Rights decision on the rights of the Endorois people triggered negotiations towards land restitution. 133 One challenge is that restitution can be purely symbolic if it is not accompanied by control of land, this occurs for example when communities are pressured into co-management arrangements or into leasing their land back to the state. 134

In the context of land, redistributive justice encompasses the twin principles of guaranteeing a minimum land access and imposing a maximum land size to establish fairness for historically-disadvantaged groups-both diametrically opposed to land and green grabs. 135 The first principle relates to sufficiency and the capabilities dimensions of justice, that is the idea that all people should be able to live mean­ ingful lives that they value. The second principle focuses on power and is transfor­ mative by preventing those with financial resources or political connections from endless accumulation that forces others off the land, as is the case with land and green grabs. Land and green grabs have led to land concentration and increasing power disparities between governments and corporates, and local communities and indigenous people. 136 Globally about 16% of farms control 88 % of land, the

13°Kashwan (2021). 13 1 Fraser (2000). 132 Fraser (1995) and Young (undated). 133 Open Society Foundation (2017). 134Koot and Buscher (2019). 135 Borras Jr and Franco (20 18). 136de Toledo et al. (2017) and Hall (2011).

32 J. C. Mohamed-Katerere

remaining 12% of land is shared among 84% of farms; in the most unequal countries less than 1 % of owners control 50% or more of agricultural land. 137

Achieving redistributive justice requires transformative remedies that aim to reduce inequalities and redistribute power in institutions, relationships between people, and discourses and norms by addressing underlying causes, such as cultural domination and exclusion. In this sense, it is distinct from other elements of the framework, which can also be implemented through affirmative remedies that address inequitable outcomes without disturbing the underlying political-economic system that generates them. 138

4.2 Recognition

Recognition requires acknowledging the identity-knowledge, values, culture and histories-and legal rights of groups and respecting these in decision-making. 139

The lack of recognition of local communities' and indigenous peoples' underpins land grabs by marginalizing them politically and not recognizing their cultural land values. 140 A run-on consequence of this exclusion is deprivation-indigenous people are three times more likely to live in poverty compared to others and have a high risk of vulnerability. 141

The hegemony of global discourses that link ideas of modernity and progress to portrayals of local communities as inefficient, backward and incapable of making needed technical interventions to manage scarce resources lead to political and cultural dominance, making it difficult for rural citizens to prevent land grabs. 142

Many governments value large-scale interventions, whether for agriculture or con­ servation, over small-scale approaches as a means to achieve food security, as is evident since the food price crisis of 2006-2008. 143 Frequently, interventions adopted, including those focused on the commodification of nature or the replace­ ment of traditional agriculture with monocultures, run counter to the widely held indigenous know ledge systems that incorporate responsibility to nature in their world view and see identity of people and land as interdependent. 144 Repeatedly, the outcome of these kinds of impositions is displacement, imposed management practices, the criminalization of local use and political exclusion. 145 In this context

137 Guerena and Wegerif (2019). 138 Fraser (1995). 139 Martin et al. (2015, 2016). 140Fladvad et al. (2020). 141 Open Society Foundation (2017). 142 Borras Jr et al. (2011) and Scoones et al. (2019). 143 Busscher et al . (2018) and German et al. (2013). 144Koot and Bi.ischer (2019), Hendry and Tatum (2016), and Open Society Foundation (2017). 145 Martin et al. (2016), Hulme and Murphree (2001 ), and Schoneveld (2017).

Mutually-Reinforcing Transgressions of Justice in Large Scale .. . 33

indigenous people and local communities face an onerous legal burden to protect their land. 146

Institutions at the global level provide a framework for communities to demand recognition, protect their land rights and claim self-determination. The United Nations Declaration of the Rights of Indigenous People (UNDRIP), which codifies and builds on international customary law and other conventions, establishes FPIC and self-determination of Indigenous People regarding lands, territories and other resources as rights. The United Nations Declaration on the Rights of Peasants and other People living in rural areas recognizes the rights to land, both individually and collectively, to sustainably use and manage resources, including land, water and pastures, needed for an adequate standard ofliving, to live in peace and with security and dignity, and to culture development. Regional instruments and decisions of regional and national courts are important, but limited mechanisms, to claim and protect rights. 147 In Mayagna (Sumo) Awas Tingi community v Nicaragua, 148 the Court ordered the government to delimit, demarcate and title indigenous property according to indigenous law. 149 A key challenge is the gap between rhetorical recognition and actual fulfilment, including the failure to implement court decisions, however, even when not implemented these legal victories have helped strengthen the confidence and agency of communities and foster new partnerships as more people become aware of the injustice inherent in land grabs. 150

Even where institutions exist that provide for recognition, internalized cultural hierarchies and informal institutions of prejudice may limit meaningful enjoyment of these rights. 15 1 For example, the use of criteria for recognition that differ from those used by indigenous people or local communities in administrative process and development and conservation projects can prevent them from enjoying their rights. 152 Static understandings of indigeneity that imagine indigenous people as primordial, for example, by requiring that the community maintains traditional culture, property regimes, and social and leadership structures and demonstrates genealogical descent, fail to acknowledge processes of change. 153 The imposition of such requirements may deny indigenous status to communities whose ancestors arrived generations ago, but later than the ancestors of other people. In Brazil, national policy recognizes self-recognition as the formal way to identify traditional communities but in the Pantanal, conservation organizations justified the displace­ ment oflocal fisher folk because they are genealogical dissimilar to other indigenous

1460pen Society Foundation (2017) and Anonymous (2016). 147 Open Society Foundation (2017). 148 Inter-American Court no 79, 31 August 2001. 149 Anonymous (2016). 150 0pen Society Foundation (2017). 15 1Martin et al. (2016). 152 Gil and Linares (2019). 153 Creado et al. (2008) and Kool et al. (2019).

34 J. C. Mohamed-Katerere

inhabitants, even though they have a long history in the region, use sustainable customary practices and self-identify as indigenous. 154

4.3 Procedural Justice

Although states are responsible for development, it is now widely accepted that citizens should consent to activities that impact on their wellbeing and liveli­ hoods, 155 even where these are purported to be in the public interest. Procedural justice relates to how citizens are engaged in decision-making, who is involved and the influence they yield. Representation, accountability, participation, consultation, FPIC, access to information, transparency and redress are procedural mechanisms recognized to various extents in national and international law and can support local bargaining and more equitable outcomes.

However, for rural citizen these procedural rights are regularly hollowed out because political systems marginalize rural people by casting them as subjects rather than citizens. 156 Frequently the implementation mechanisms for procedural rights in administrative or project standards fall short of global requirements even when community land rights are formally protected. 157 In Peru, for example, rights to FPIC are negated by denying recognition to communities in the mining law 15 8 and this led to a steep rise in mining concessions as a percentage of land from 7.3 % in 2009 to 20.23% in 2014. 159 A further challenge is that many countries limit the right of FPIC to displacement and dispossession and to indigenous people. 16° Further, to be effective FPIC must include the right to say no, rather than simply to collabora­ tively frame the investment, to do otherwise is inherently undemocratic. 16 1

In general, communities have limited opportunities to challenge investing com­ panies in national courts as already mentioned they are not parties to investment agreements and have no rights to demand review by national courts. 162 However, communities can and do challenge state actions in national and regional courts. For example, in Indonesia, the courts have ruled that forest designation without FPIC is arbitrary and illegitimate. 163 Communities are also able to defend their rights in

154 Chiaravalloti (2019). 155 Ece et al. (2017). 156Mamdani (1997) and German et al. (2013). 157 Schoneveld (2017), Gil and Linares (2019), Ece et al. (2017), and Nuesiri (2017). 158 Gil and Linares (2019). 159 Borras Jr and Franco (2012). 160 Anonymous (2016). 16 1 Ece et al. (2017). 162 Perrone (2019) and Sachs (2020). 163 Myers and Mumu (2015).

Mutually-Reinforcing Transgressions of Justice in Large Scale ... 35

regional courts, the Inter-American Court of Human Rights has ruled in favour of communities in disputes over mining, logging and agribusiness. 164

Opportunities for rent capture by traditional leadership and local government may serve as a disincentive for genuine representation and consent when deciding inland investments. 165 In Mozambique, the 1997 land law requires investors to consult communities to identify land that is not occupied or to negotiate use with them, but investors tend to 'sell the project' to a few representatives on the promise of jobs, food security or development. 166 The selection of representatives by developers or governments rather than by the impacted communities further distorts consulta­ tion. 167 Ece et al, in a study of 13 African countries, find a "systematic disjuncture between donor and government claims of participation, representation in policy­ making, and project development and implementation." 168

The lack of legitimacy and ability to lawfully contest grabs frequently leads to conflict between the state and adversely impacted people, and between investors and communities, as well as within communities. 169 Communities may engage in direct protests or 'everyday' protest such as pilfering, arson, and preventing tourists from entering protected areas. 170 In the absence of acceptance of oppositions, those contesting investments may experience exclusion and social conflict that contributes to increased vulnerability. 17 1 Human rights and environmental defenders, especially in the extractive and agrarian sectors are often targeted and face criminalization, violence and assassinations. 172 In 2020, 69% of the 331 defenders killed land and indigenous peoples rights and the environment. 173 This disregard continues to take place despite a 2019 United Nations Human Rights Council resolution requiring states to create a safe and enabling environment for defenders and calling upon corporates to respect human rights.

In a meta-analysis Oberlack et al. identify four main archetypes of vulnerability that are directly linked to the governance of land and green grabs, these are: asset enclosure, elite capture, selective marginalization in which one group experiences a reduction in assets, and the polarization of development discourses among citizens leading to conflict. 174 Contributing governance injustices include asymmetries in negotiation, selective exclusion and weak accountability and consultation that priv­ ileges private capital interests over local rights and interests in national law and

164 Anonymous (2016). 165 Schoneveld (2017). 166Shilomboleni and Yildiz (2017). 167 Baruah (2017). 168 Ece et al. (2017), p. 358. 169 Borras Jr and Franco (2012), Hall et al. (2015), and Mohamed-Katerere (2014). 170Holmes (2007), McAllister (2015), Fletcher et al. (2015), Springer (2015), and Kay (2015). 17 1 Springer (2015) and Oberlack et al. (2016). 172 Scheidel and Gingrich (2020) and Open Society Foundation (2017). 173 Frontline Defenders (2021 ). 174 Oberlack et al. (2016).

36 J. C. Mohamed-Katerere

contractual agreements. 175 Vulnerability may also be linked to failure of states and corporate sector to fulfil their human rights obligations to impacted peoples. 176 It is plausible that less democratic and more repressive state responses will become the norm as states respond to discontentment, as evidenced in structural adjustments, land and green grabs, and in response to the Co VID-19 Pandemic. 177

4.4 Distributive Justice

Distributive justice is concerned with the distribution of benefits and costs of development and conservation interventions and is widely recognized as key to fairness. Empirical research finds that people, across different cultures, commonly consider sufficiency as an important benchmark for assessing justice. 178 However, the implementation of distributive justice is commonly restricted to the share of direct costs and benefits and does not address the structural and systemic distribution of resources.

Land and green grabs, in general, magnify the skewed distribution of costs and benefits nationally and globally by continuing inequitable development and conser­ vation traditions 179 of placing the adverse impacts of displacement, elite capture, environmental damage and violent outcomes on poor people and rural citizens. 180 In some approaches, cost-benefit analysis considers benefits at a global or regional level (such as carbon sequestration) from grabs as being in the 'public interest' and offsetting costs or harm suffered locally. 18 1

Displacement is a major cost of grabs-it magnifies vulnerability when social support networks are disrupted, affected people unable to gain access to alternative lands of similar extent, or receive adequate compensation. 182 Even where compen­ sation is awarded, it is normally limited to individually held land and not benefits attained from common property resources, such as forest resources. 183 In Nepal, given the focus on present entitlements and not overall historical and cultural trans­ formations , displaced Rana families without land registration received around 11 % of their actual land, compared to an average compensation rate of 56% for those with registration. 184 The losses occurred in grabs are generally not offset by employment,

175 Nel (2015), Ogwang et al. (2019), and Ece et al. (2017). 176Kok et al. (2010). 177 Abouharb and Cingranelli (2006), Franklin (1997), Poe et al. (1999), Cotula (2021 ), and Frontline Defenders (2021 ). 178 Martin et al. (2015). 179 Hufe and Heuermann (2017) and Hulme and Murphree (200 l ). 18°Kotze (2019). 18 1 Sikor et al. (2013). 182 Oberlack et al. (2016). 183 Schoneveld (2017). 184 Lai and Saumik (2014).

Mutually-Reinforcing Transgressions of Justice in Large Scale .. . 37

which is the main benefit. 185 This cost-benefit approach effectively aggregates different, incommensurate, components of life and reduce these to a simple metric or a net balance to determine the validity of any action or decision. 186 This approach runs counter to a human rights approach which is based on the idea that an intolerable harm cannot be offset or justified by another good. Indeed, the popularity of human rights indicates the limited appropriateness this approach. 187

4.5 Capabilities, Sufficiency and Equality

Capabilities are concerned with what citizens are able to do and be, and include the achievement of wellbeing and human dignity. 188 The Millennium Ecosystem Assess­ ment proposes that the freedom to achieve a life one values is based on sufficient access to material assets, health, good social relations and personal security, 189 and this understanding is incorporated into the Millennium Development Goals.

The unequal opportunity structure of land and green grabs fails to ensure suffi­ ciency and constrains the capabilities and wellbeing of impacted people by reducing access to required material assets from healthy soils to education, health, good social relations and physical security-as land inequality is increased, public and private support for small holders is diminished and control over land is lost. Importantly these impacts cumulatively reduces the freedom of choice of citizens.

The risk of the sufficiency failures is that the vulnerability of marginal groups including newly displaced or (partially) dispossessed people to future shocks such as climate change, extreme weather events, conflict, epidemics, environmental degra­ dation, market volatility and so on will increase thus contributing to chronic pov­ erty . 190 Vulnerability to food insecurity is a glaring outcome of land grabs particularly in Africa and Asia. 19 1 In a study of 38 Africa countries, Mechiche­ Alami et al. find that only 20% of these countries are likely to improve food security, although they also face the risk of increase land pressure, conflict or deforestation which could adversely impact on food security. 192 In 50% of the countries studied, agricultural produce was primarily non-food or intended for export, while only 15. 7 % of produce was targeted for the local market. 193 Importantly land grabbing coincides with water grabs, including both rainwater and irrigation, affecting health

185 Kay (2015), Schoneveld (2017), and Hufe and Heuermann (2017). 186 Nussbaum (2007) in Martin (2016). 187 Greiber et al. (2013). 188 Martin et al. (2016). 189 MEA (2005). 19°Kok et al. (2010) and Sobhan (2014). 19 1 Borras Jr et al . (2011 ). 192 Mechiche-Alami et al. (2021 ). 193 Mechiche-Alami et al. (2021 ).

38 J. C. Mohamed-Katerere

and livelihoods in surrounding and downstream lands. 194 Pastoralists, given their cyclic use of land resources and their lack of continuous physical control, lose entitlements through land and green grabs. 195

The tensions in social relationships that arise in the context of land and green grabs impact on agency and freedom. Many civil society initiatives face considerable social and political risk including being labelled as anti-development by powerful coalitions that support grabs. 196 In general, the judicial system has not held national and local government and traditional leaders responsible for multiple justice failings and adverse social outcomes. 197 National, local and traditional leaders are often embroiled in these conflicts as gate keepers and deal makers. 198 The proposed law in Brazil to allow title to be granted for illegal land claims on the basis of self­ declaration is an extreme example of this. 199 Further, land and green grabbing has strengthened the presence and power of the state in rural areas, although this tends to be uneven and concentrated in particular zones, including transport or development corridors where special policy and legal regimes may apply including new tax regimes, separate administrative and judicial institutions to settle disputes, and a shift in regulatory authority from the legislature to the executive. 200 In Brazil dense infrastructure networks to meet the demands of the energy, agribusiness and mining place new pressures on territories of IPLC201 and a similar direction is evident in eastern and southern Africa development corridors.

The conflict from grabs compromises the collaborative social relationships that could drive peaceful change processes to more equitable societies. 202 However, the emergence of networks and alliances in response to grabs is evident, including at a transnational level, and this strengthens local agency. 203 Many have been able to use formal institutions to deconstruct power and drive institutional change through diverse strategies including human rights approaches and extending rights claiming.204 For example, REDD+ has been strongly influenced by the assertion of cultural ties to land by indigenous people that focus on the value of land as a place of belonging, for the exercise of sovereignty and revenue sharing,205 even though practice has lagged behind the rhetoric. 206 Strategic litigation has also been used to

194 Rulli et al. (2013). 195 Davies et al. (2016). 196 Wolford et al. (2013). 197 Anonymous (2016). 198 Hall (2011 ). 199 Carrero et al. (2020). 200Cotula (2020). 20 1 de Toledo et al. (2017). 202 Martin et al. (2016) and Mohamed-Katerere (2014). 203 Avellino and Wittmayer (2016). 204 Park (2018) and Fladvad et al. (2020). 205 Sikor et al. (2013). 206 Suiseeya (2017).

Mutually-Reinforcing Transgressions of Justice in Large Scale ... 39

create awareness around rights of local communities and indigenous people. Some governments have responded by transferring forest tenure to excluded groups to address historical injustice. 207 Cotula suggests that concerns around 'grabs' has led to resource nationalism and that the world might be entering a phase of economic disintegration. 208 There is no certainty as to what the contemporary political-scape will mean for capabilities and the ability of rural citizen to shape their own futures, much depends on 'unruly politics '209 and the agency of those marginalized through land and green grabs.

5 Conclusion

This chapter has analysed multiple interlinked justice failings in land and green grabs. It has demonstrated that the current governance and institutional framework privileges powerful coalitions of global and national elites over and above citizens living with the targeted resources. It is evident that the emergence of these new neoliberal models of accumulation take advantage of the colonial legacies of weak tenure and reducing rural citizens to subjects. This is linked to imbalances in governance and the very direct ways in which procedural rights are hollowed out. Human rights approaches are only partially implemented and this as well as the lack of clear limitations on the actions of corporates lies at the heart of this institution failure. Additionally, the lack of recognition of local communities, including their land rights and cultural and political values compounds the governance injustices.

Social justice and human rights do not have the same level of political commit­ ment or legal mandate as market based development for multiple reasons,2 10 instead there is an assumption that justice will be achieved through material improvements in wellbeing from trickle down mechanisms. 2 11 Measurable adverse impacts on wellbeing and vulnerability have occurred, particular as the opportunities created, such as employment, do not outweigh the costs imposed. Many of the benefits associated with grabs are experienced globally or at a national level, such as reductions in carbon emissions or increases in foreign exchange earnings respec­ tively. Justice will require more serious consideration of equity in distributive and redistributive mechanisms.

Importantly, as demonstrated, governance and livelihood injustice combine to hook rural communities into these neoliberal approaches and reduce the choices available to them. This is underpinned by the active denial and locking out of other options and paths to prosperity. It is clear that political and institutional systems,

207 Sikor et al. (2014). 208 Cotula (2020). 209 Scoones (2016). 210Mechiche-Alami (2021), Wolford et al. (2013), Fletcher et al. (2015), and Kool et al. (2019). 211 Kashwan et al. (2021 ).

40 J. C. Mohamed-Katerere

including at a global level, need to develop mechanism for listening to and respect­ ing the views and aspirations of those that live in rural communities. As long as these citizens are imposed upon, development and conservation policies will remain coercive and unjust.

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