Legal empowerment for local resource control

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aise issues about the project’s social and environmental performance (principle 6 of the 2006 Equator Principles). However, the principles remain vague as to the minimum requirements that such grievance mechanisms must meet, and stop short of asking for a mechanism ensuring independence from the investor. To sum up Tightening rules on taking or compression of local resource rights is an important legal tool to strengthen these rights within the context of foreign investment projects. This entails embodying in the law robust and unqualified public purpose and non-discrimination requirements, as well as requirements for payment of compensation for both takings and lesser forms of loss of rights; attaching payment of compensation not only to loss of ownership but also to impairment of other types of resource rights such as use rights based on “customary” norms; and establishing clear and fair standards of valuation and compensation, and fair and transparent expropriation procedures, including grievance mechanisms. Integrating these elements would make expropriation processes – which are by their very nature aimed at abolishing or compressing local resource rights – an effective legal tool to protect those rights. 3.3.4. Legal remedies for damage to property: injunctions, restoration and compensation Foreign investment projects may also cause damage to the property of local resources users, for instance through pollution or other damage caused by construction activities. A further set of legal tools relates therefore to remedies for damage to property. These include injunctions to stop damaging activities; and, after damage has occurred, “restitutio in integrum” (restoration of the damaged property to pre-damage state) and compensation. This type of compensation differs conceptually from the compensation associated with takings. In the case of takings, payment of compensation is part of the taking process, and is usually a condition for its legality. In the case of damage to property, on the other hand, compensation intervenes after a wrongful act has occurred, and constitutes a legal remedy to that act. Injunctions, restoration and compensation are linked to the human right to an “effective remedy” for violations of rights or freedoms, stated in the 101
102 UDHR (article 8) and in the ICCPR (article 2(3)). With regard to indigenous peoples, ILO Convention 169 requires “fair compensation for damages” (article 15(2)) and compensation for “any loss or injury” (article 16(5)). That environmental pollution may constitute a violation of human rights as diverse as the right to private home, the right to dispose of natural resources, the right to food, and others, was clarified by the European Court of Human Rights in Lopez Ostra v. Spain and by the African Commission on Human and Peoples’ Rights in SERAC v. Nigeria – which specifically concerns foreign investment projects in the natural resource sector in Africa (see above, section 2.2.2). The terms and conditions concerning legal remedies for damage to property resulting from foreign investment projects are determined by national legislation – particularly the law of torts and civil procedure. A key issue is whether remedies are only available to owners (i.e. to those having a registered title for their land), or whether they also benefit resource users not having full ownership rights. In Mali, for instance, the Mining Code 1999 requires holders of mining titles to repair all damage caused to the property of holders of land titles, occupation titles and customary rights (articles 60 and 63). Contracts between the foreign investor and the host state may also contain relevant provisions – though these usually refer back to the domestic legislation of the host state. For instance, the 2003 International Project Agreement for the West African Gas Pipeline (WAGP) requires the investor to pay to affected “land owners and lawful occupiers of land” “fair compensation” for damaged caused, in compliance with relevant domestic legislation (article 21.9). Similarly, the COTCO-Cameroon contract for the Chad-Cameroon pipeline requires COTCO to compensate affected persons for damage suffered as a result of project activities (article 17). The vast and growing case law on oil litigation in Nigeria provides insights on the problems affecting remedies for damage to property. A review of some 70 Nigerian court cases concerning oil spills and other types of damage (Frynas, 1999) documented a series of legal hurdles, including: The reluctance of courts to grant injunctions to stop polluting activities, on grounds concerning the importance of such activities for employment and revenue generation (e.g. Irou v. Shell-BP, quoted by Frynas, 1999);
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Legal empowerment for local resourc
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LEGAL EMPOWERMENT FOR LOCAL RESOURC
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ABOUT THE AUTHOR Lorenzo Cotula (lo
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ICSID International Centre for the
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viii
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x III. LEGAL TOOLS TO SECURE LOCAL
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2 Legal empowerment can increase lo
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4 and implementing para-legal tools
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6 1.1. OVERVIEW 1.1.1. The issue Ac
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8 local levels. Overall, the law te
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10 1.2. DEFINITIONS, SCOPE AND RATI
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12 generally, the range of strategi
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14 CHART 2. FDI STOCK IN SELECTED A
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16 the Middle East, to sub-Saharan
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18 2.1. POWER AND LEGAL EMPOWERMENT
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20 where short timeframes would pre
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22 provisions embodied in the const
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24 2.2. FOREIGN INVESTMENT PROJECTS
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26 country power structures through
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28 investor to access a specific lo
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30 compensation), 11 and those on t
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32 that characterised the Cold War,
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34 As a result, the international l
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36 have also created government age
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38 In Africa, very little land has
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40 When conflicts between local and
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42 FIGURE 1. LAW AND POWER IN FOREI
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44 2.3. TOOLS FOR LEGAL EMPOWERMENT
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46 citizens at large use them. The
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48 2.3.2. Para-legal tools The fact
Page 61 and 62: 50 emphasise helping clients themse
Page 64 and 65: III. LEGAL TOOLS TO SECURE LOCAL RE
Page 66 and 67: institutional arrangements, or wher
Page 68 and 69: In Cameroon, efforts to vest strong
Page 70 and 71: Group rights and individual rights
Page 72 and 73: BOX 4. TOOLS FOR LOCAL GOVERNMENT A
Page 74 and 75: (section 1 of the Land Act and sect
Page 76 and 77: BOX 5. LOCAL CONVENTIONS Where stro
Page 78 and 79: and is meant to shift the balance o
Page 80 and 81: ights on the ground, which usually
Page 82 and 83: Denise Malauene Community land regi
Page 84 and 85: addressed. Reform to strengthen the
Page 86 and 87: state, local resource users can “
Page 88 and 89: Another aspect of “who to consult
Page 90 and 91: occur at a relatively late stage in
Page 92 and 93: To sum up Mandatory consultation pr
Page 94 and 95: usually not formalised in the way r
Page 96 and 97: 3.3. TOOLS TO MINIMISE AND COMPENSA
Page 98 and 99: In some cases, these EIA provisions
Page 100 and 101: Tighter legal requirements on SIAs
Page 102 and 103: First, legislation typically requir
Page 104 and 105: under the Village Land Act, “cust
Page 106 and 107: prohibits “arbitrary” deprivati
Page 108 and 109: the implementation of micro-project
Page 110 and 111: BOX 7. THE SAN OF BOTSWANA: COMBINI
Page 114 and 115: Tight rules on statutes of limitati
Page 116 and 117: to hold the parent company responsi
Page 118 and 119: IV. CONCLUSION 107
Page 120 and 121: Part III of the study analysed rece
Page 122 and 123: FIGURE 3. LEGAL TOOLS - CONCEPTUAL
Page 124 and 125: 4.2. FROM LEGAL TOOLS TO LEGAL EMPO
Page 126 and 127: First, each of the legal tools anal
Page 128 and 129: account is shaped by power relation
Page 130 and 131: 4.3. WHAT NEXT? This study has deve
Page 132 and 133: V. ANNEXES 121
Page 134 and 135: years or periodic tenancy, usually
Page 136 and 137: 5.2. REFERENCES 5.2.1. Literature A
Page 138 and 139: Egbe, S.E., 2001b, “The Law, Comm
Page 140 and 141: Platteau, J.P., 2000, “Does Afric
Page 142 and 143: BACONGO v. Department of the Enviro
Page 144: Legal empowerment for local resourc
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Legal empowerment for local resource control

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