Indigenous Negotiations - Part One
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By Vince McElhinny
Editor’s Note: In the summer of 2018, Conservation International (CI) held a weeklong workshop on Indigenous negotiation training and exchange with partners in Laikipia County, Kenya. In this two-part series, Vince McElhinny describes the experiences of two Kenyan indigenous partners, defending their rights in the context of negotiations with development projects on their lands.
Mounting external pressures from unyielding extraction and transport of natural resources means that indigenous peoples are increasingly choosing or being coerced to negotiate deals with outside interests for development of their lands and resources. These negotiated agreements have often been unfavorable to indigenous peoples, due to historic power imbalances.
However, recent research shows they don't have to be. Aboriginal negotiation experiences in Australia, Canada and elsewhere show that negotiated agreements can benefit indigenous peoples, even when negotiated under conditions of asymmetric power. Indigenous negotiated agreements with public and private actors are increasingly viewed as an important, practical expression for how free, prior and informed consent (FPIC) is provided. When these negotiated agreements have been most successful, the key ingredient has been indigenous peoples' internal access to the resources and capacities needed to advocate for their rights.
These choices are playing out in the pastoralist communities of Kenya, and were the focus of a recent Africa Regional Workshop on Indigenous Negotiations, held in Nanyuki. The main city of Laikipia County, Nanyuki is Kenya's most important wildlife conservation county, which hosts more than 50% of Kenya's highly threatened rhinos, and is the only part of Kenya where wildlife populations are higher than 30 years ago. Maasai, Samburu, Turkana, Ogiek and other indigenous group leaders came together for a week to exchange negotiation experiences in defending their lands, territories and waters, and engage with conservancies to protect wildlife and promote sustainable tourism.
However, Like Turkana to its north and Mt Elgon in the west, indigenous communities in Laikipia and across East Africa are not only battling the effects of climate change; they are also facing major agriculture, infrastructure, extractives and energy investments that pose immediate threats to land rights and local livelihoods. Currently, over two thirds of land in Laikipia is held by private ranch owners. How effectively communities can defend these rights will determine the future of protection of the Kenya's great wildlands and wildlife.
Pastoralism in Lake Turkana under siege by wind, oil and water development
To the far north of Kenya lies Lake Turkana, Africa's largest salt lake and ground zero for a growing conflict between the pastoralist way of life and development. Lake Turkana is a World Heritage site shared by Kenya and Ethiopia which is experiencing rapid change. The Turkana people are pastoralists whose dependence on this ancestral landscape for their survival is threatened by the rapid arrival of multiple energy, extractives and infrastructure projects. As such, the region's indigenous people are now faced with a challenge: how can they negotiate the benefits and costs of these megaprojects in a way that preserves their cultural identity and protects their natural resources? Failure to find a fair agreement poses significant costs both to the community and to the project developer, with adverse consequences for nature.
On July 2, Turkana community members closed down and occupied the shipping operations of Tullow Oil, a UK operator that has drilled the first 40 of what may be 300 oil wells near Lake Turkana. Community outrage spilled over when it was revealed that a lucrative contract to provide services to Tullow had been awarded to a Nairobi-based company instead of the community, as originally promised. Turkana protests shut down Tullow's operations for nearly a month, costing the company a reported $100,000 per day.
But this wasn't the first time the Turkana community felt betrayed and isolated.
They were also unhappy about the way land was acquired for the 365 wind towers of Africa's largest wind farm. In addition, Lake Turkana is disappearing as Ethiopia's Gibe III hydroelectric dam diverts precious water to irrigate export farms and electricity transport lines have pushed through pastoralist land with what communities view as inadequate consultation or compensation. And what's more, even larger road, rail and pipeline megaprojects are on the horizon (see map in Figure 1).
Negotiated Agreements – an alternative path
Conservation International was invited to hold a workshop to exchange negotiation experiences by IMPACT (Indigenous Movement for Peace Advancement and Conflict Transformation), a peace building, indigenous rights and community development organization that works with indigenous pastoralists and hunter gatherer communities across Northern Kenya. Four staff from CI's Center for Communities and Conservation were joined by 14 indigenous participants from across Africa, representing Kenya, Tanzania, South Africa and Botswana. An indigenous representative from the Philippines also joined the workshop in her role as a current fellow in CI's Indigenous Leaders Conservation Fellowship.
Ricardo Lopeyok, a workshop participant representing Friends of Lake Turkana, explained how the lack of negotiating experience makes communities more susceptible to accepting the company's first and sometimes only offer of compensation for offsetting negative impacts. Often, compensation is far below what communities deserve. Ricardo described how Tullow tied negotiation of leases for a series of 200 square foot well pads to small sums in compensation through separate negotiations with each affected family. The agreements were made without the time and tools needed to fully assess and, if necessary, contest the true valuation of losses, or to engage in a collective, community-wide agreement. Discontent with this process later fed a shutdown of the shipping facility and damaged the possibility of good faith engagement between company and community.
The Turkana protest echoes wider trends and possible lessons for future negotiation. Infrastructure and extractive investments that lack of solid community support exposes projects to significantly higher risk of delay, cost overruns or cancellation. According to a recent study on infrastructure conflict by the Inter-American Development Bank, "deficient planning, reduced access to resources, lack of community benefits, and lack of adequate consultation were the most prominent conflict drivers. In many cases, conflicts escalated because grievances and community concerns accumulated, going unresolved for many years". Investors face short-term losses and the adverse effects can be enduring and sector-wide. Given the significant contributions that indigenous peoples play in conservation and climate mitigation, building negotiation capacity is an urgent way of closing this gap.
The exchange allowed participants to share their own experiences in negotiation with one another, a discussion which highlighted the range of tactics communities can use to ensure negotiations are effective, including: keeping with an open mind, ensuring a firm understanding of rights, conducting an internal assessment of community strengths and challenges, investing in external alliances, building a negotiation team, establishing a communications strategy investigating the 'other side' and what would make a good agreement.
Experiences in the Nanyuki exchange revealed that indigenous peoples have been negotiating for a long time; some communities even have designated negotiators. As such, negotiation is not a new idea for indigenous peoples, but negotiations with completely external actors (as opposed to neighbor communities, for instance) is a relatively new concept.
Participants were asked also to consider why indigenous peoples negotiate. Responses included acknowledgement of potential mutual benefits and the ability to create fair benefit sharing. Also noted was the fact that indigenous peoples do not live in isolation and are not, as is often misrepresented, 'anti-development.' Negotiation is a tool that can be used to reinforce the right to FPIC, even when it means consent is not given – as in the recent ruling in favor of the Pondo people fighting a titanium mine. Just as importantly, negotiation can enable indigenous peoples to advance their own development priorities and de-escalate or avoid conflict scenarios.
Next week, we'll share an example from the Lewuaso community. Stay tuned!
 Ciaran O'Faircheallaigh, Negotiations in the Indigenous World: Aboriginal Peoples and the Extractive Industry in Australia and Canada (2016).
 David Hewett (2013) Brief to Laikipia County Governor on The Ethiopia – Kenya HVDC Power Line And the Local Impact of it on the County. Mpala Research Centre
 Laikipia Wildlife Trust, Wildlife Conservation Strategy, 2012-2030. http://spaceforgiants.org/testsite/wp-content/uploads/2016/02/STRAT_LWF2012-2030EMAIL.pdf
 Watkins, Graham, et al (2017) Lessons from four decades of infrastructure project related conflicts in Latin America and the Caribbean. IDB
 Op cit, pg. 11
 The IDB study found that 28% of projects faced historically motivated community opposition.