The Social License: Empowering Communities and a Better Way Forward

Abstract

The term social license is generally understood as an intangible representation of ongoing approval or acceptance of a project by affected communities, which can be withdrawn at any time, distinct from a legal or regulatory license granted by a government. This paper looks at the concept through the lens of the extractive sector in the developing world and explores the history of violations of land and human rights of indigenous and rural communities living around these resources. While corporate actors often maintain that acquiring a social license is voluntary and different from obtaining consent, this paper suggests instead that the idea of a license that can be withdrawn represents an assertion of power by people whose land and human rights have been consistently violated, and a recognition of that power by the corporate sector. This article will explore the relationship between the need for a social license and institutional characteristics related to land rights; the FPIC and CSR constructs as responses to such issues and their limitations; and whether and why the social license construct may be used as an empowerment tool for communities to assert their rights and obtain the protection they have been long denied.

Keywords:

• Social License
• Land Rights
• Extractive Sector

Notes

1 Lassonde (2003).

2 Placer Dome was a Canadian mining company, which has since been acquired by Barrick Gold.

3 Boutilier, Black, and Thomson (2012).

4 Lacey, Parsons, and Moffat (2012), BSR (2003), Pike (2012).

5 Slack (2012), Frynas (2005).

6 Laplante and Spears (2008).

7 This paper discusses customary land tenure here as the systems of land governance and administration common to rural areas, described by Wily as regimes where norms derive from and are sustained by the community, rather than the state or state law (statutory land tenure).

8 Colchester et al. (2001), Wily (2011).

9 Colchester et al. (2001).

10 Ghana Minerals and Mining Act (2006), §§ 73–4.

11 University of Texas School of Law (2010)

12 Republic of South Africa, Mineral and Petroleum Resources Development Act, No. 28 of 2002.

13 Constitution of South Africa, sec 25.

14 MPRDA at §§ 10, 15, 22, and 27.

15 MPRDA at §§ 54 and 55.

16 Gqada (2011).

17 Curtis (2008).

18 Farrell, Hamann, and Mackres (2012).

19 Earthworks (2004), Lange (2008), Sibaud (2012).

20 As noted by Rousseau in his discourse on government, “The Social Contract”:

The social compact sets up among the citizens an equality of such a kind, that they all bind themselves to observe the same conditions and should therefore all enjoy the same rights. Thus, from the very nature of the compact, every act of Sovereignty, i.e. every authentic act of the general will, binds or favours all the citizens equally … What, then, strictly speaking, is an act of Sovereignty? It is not a convention between a superior and an inferior, but a convention between the body and each of its members. It is legitimate, because based on the social contract, and equitable, because common to all.

21 Gilberthorpe and Banks (2012).

22 Cotula (2007).

23 Yates and Horvath (2013).

24 Lehr and Smith (2010).

25 ILO Convention 169, Art. 15.

26 ILO Convention 169, Art. 16.

27 There were 143 votes in favor, 4 states opposing, and 11 abstentions.

28 UNDRIP, Art. 10.

29 Lehr and Smith (2010).

30 IFP Performance Standard 7 (2012), paras 12 and 15.

31 These countries are: Argentina, Bolivia, Brazil, CAR, Chile, Colombia, Costa Rica, Denmark, Dominica, Ecuador, Fiji, Guatemala, Honduras, Mexico, Nepal, Netherlands, Nicaragua, Norway, Paraguay, Peru, Spain, and Venezuela. Available at http://www.ilo.org.

32 Earthworks and Oxfam America (2004).

33 Lehr and Smith (2010).

34 Motoc and Tebtebba Foundation (2005).

35 Gunningham, Kagan, and Thornton (2004).

36 Slack (2012).

37 BSR (2003).

38 Herz, Vina, and Sohn (2007).

39 Hackenbruch and Pluess (2011), Oxman (2011).

40 Hilson (2012), Campbell (2012).

41 Blowfield (2005).

42 Idemudia (2009).

43 Warnaars (2012).

44 Gilberthorpe and Banks (2012).

45 Pegg (2012).

46 Hamann and Kapelus (2004), Slack (2012), Blowfield (2005).

47 Earthworks and Oxfam (2004), Human Rights Watch (2011), Tebtebba and FPP (2005).

48 Humphreys (2000).

49 Ernst & Young (2011, 2012, 2013). The risk of a social license dropped to sixth place during 2012–2013, overtaken by cost inflation and capital project execution.

50 Hackenbruch and Pluess (2011), Yates and Horvath (2013).

51 Lacey, Parsons, and Moffat (2012).

52 Buxton and Wilson (2013).

53 Gilberthorpe and Banks (2012), Laplante and Spears (2008).

54 Prno and Slocombe (2012). While it is not the purpose of this article to debate the distinctions and similarities referenced here, it does note that the last view which sees FPIC as merely obtaining one-time consent demonstrates the challenges of using international human rights law. FPIC is but one part of a broader set of laws, which protect the rights of indigenous persons to self-determination and their ability to access all other human rights at all times, and as noted by Tebtebba and Forest Peoples Programme (2005), “it is a mistake to disaggregate the various components of the right to self-determination as they are, in sum, a complex of inextricably related and interdependent rights.”

55 Indigenous Peoples’ Declaration on the Extractive Industries, 15 April 2003, Oxford, United Kingdom.

56 Mandefro (2010), Owens and Kemp (2012).

57 Owens and Kemp (2012), Slack (2012).

58 Idemudia (2009).

59 Buxton (2012).

60 Standing & Hilson (2013).

61 University of Texas School of Law (2010).

62 Buxton and Wilson (2013).

63 This dynamic is not necessarily peculiar to statutory legal systems; it is be present in customary law as well, as illustrated by the case of the Ghanaian tribal chiefs discussed above who manipulate their customary authority to make decisions to better themselves at the expense of other members of the community.

64 Byamugisha (2013).

65 Wilson, J. and Kavanah, M., Lonmin mine shootings raise tensions, Financial Times, June 3, 2013, available at http://www.ft.com/intl/cms/s/0/946f8a78-cc5c-11e2-9cf7-00144feab7de.html#axzz2a30DDQ3H; England, A., South Africa: A Mine of Contention, Financial Times, Aug. 24, 2012, available at http://www.ft.com/intl/cms/s/0/69e9becc-edcd-11e1-8d72-00144feab49a.html#axzz2ae91Xv3U.

Additional information

Notes on contributors

Juliette Syn

Juliette Syn is a legal and international development professional who specializes in human rights and development. Her areas of emphasis include natural resource management, customary and statutory land tenure, administration and reform, social justice and legal empowerment, and equitable economic development. She has worked on these issues in the Democratic Republic of Congo, Indonesia, Liberia, and South Sudan.