Legal empowerment for local resource control

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construction, operation and maintenance of public infrastructure (e.g. under
Ghana’s Land (Statutory Wayleaves) Act 1963).
In these cases, while local resource users formally retain their resource
rights, these are considerably compressed. Lack of compensation in these
instances would result in loss of livelihood sources. This is a major problem
in many compensation schemes – although some countries have taken
steps to address this. Under Ghana’s Lands (Statutory Wayleaves) Act, for
instance, any person who suffers loss as a result of action undertaken under
the “wayleave” is entitled to compensation (section 6(1)).
Similarly, Mali’s Mining Code 1999, in regulating the establishment of
mining servitudes on land held by third parties, requires payment of
compensation for compression of ownership, occupation, customary and
other rights (article 60). And, if the establishment of such servitudes makes
“normal” use of these rights “impossible”, the right-holder has the right to
demand a full (and duly compensated) expropriation (article 60).
In Tanzania, compensation is due for transfers of land from “village land”
(managed by the village councils) to “general land” (managed by the central
government; section 4(8) of the Village Land Act). Such transfers do not
entail any transfer of ownership (which remains vested in the president on
behalf of the nation), but rather a change in the legal regime applicable to
the land. They are typically effected in order to enable land allocations to
foreign investors by central government agencies.
What standard of compensation?
Another set of questions relates to the way in which and the criteria according to
which affected property is valued (“valuation”); and to the standards determining
the relationship between that value and the amount of compensation (standard
of compensation – in theory, ranging from zero to full value).
While international law contains a range of formulae for the standard of
compensation relating to takings of foreign investors’ assets (the increasingly
used formula being the so-called “Hull formula” of “prompt, adequate and
effective compensation”; see above, chapter 2.2), it is much less developed
on standards applicable (not to foreigners but) to nationals. 48 The UDHR
48. That international law compensation standards developed in relation to foreign investors do not apply
to nationals was confirmed in the ECHR cases James v. UK and Lithgow v. UK – see above, chapter 2.2.