Legal empowerment for local resource control

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construction of hospitals, schools or other public facilities. But whether
commercial projects like mining operations should be considered “public
purpose” initiatives raises questions. It is accepted that private-to-private
(rather than private-to-state) transfers of resource rights may still be in the
public interest if they respond to public purpose policy goals – such as
ensuring a more equitable asset distribution (see for instance the ECHR
case James v. UK).
Large-scale investment projects are often justified “in the name of
development”, and in that sense an argument is usually made that such
projects are for a public purpose (for instance, with regard to dams, which
generate power for both industry and domestic consumption). But in
purely commercial projects such as mining operations, such positive
spillovers for the domestic industry and for society at large are less evident,
while the profits generated by the project accrue to private operators (and
to a lesser degree to the government through taxes and royalties).
This issue is particularly pressing given that in several jurisdictions private
companies undertaking activities that are deemed to be in the public
interest may initiate the process to take or otherwise compress land rights –
subject to the approval of government authorities. For instance, Cameroon’s
Law 96-14 of 1996 concerning the construction and operation of pipelines
provides for the allocation of a land easement from the government to the
pipeline operator; and enables the latter to temporarily occupy privately
held land outside the easement area for construction and maintenance
purposes, provided that compensation is paid and that government
approval is obtained (article 33).
In practice, however, public purpose requirements offer very limited
scrutiny of government action. In Africa and elsewhere, courts have tended
to defer to governments in their definition of what public purpose is, and
decisions striking down takings based on public purpose requirements
alone are very rare. At most, courts have reviewed whether government
measures are reasonable and proportionate to pursue the stated purpose.
To further reduce the possibility of contesting compliance with the public
purpose requirement, specific legal devices have been used: