Legal empowerment for local resource control

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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);