ENVIRONMENT AND SUSTAINABLE DEVELOPMENT; LESSONS OF THE NIGER DELTA REGION By Adesanya Yetunde Mariam.

(LLB; BL) INTRODUCTION Nigeria is an oil producing country whose economy depends on revenue derived from the sale of crude oil. The benefits of oil and gas exploration and productions in Nigeria are not in doubt, as the proceeds have been used basically for economic growth and development and to build the nation, however the consequent environmental impact of the oil industry activities in the oil bearing areas have permanently alienated virtually the entire land and offshore of the Niger Delta region of Nigeria. To maintain the environment at a life sustaining level with attendant economic development and also have a reserve for the future, the concept of sustainable development was initiated by the Brundtland Commission1. This is the development that takes the impact on the environment into account and tries to minimize environmental damage that is real development2. However, the consequences of oil extraction in Nigeria in the course of development are not only unconscious of the future, but also currently damaging to the environment3. As environmental issues have been at the fore front of international discourse, and in addressing the problems of economic growth, the international community and countries have adopted various legal strategies at the international and national level that attempt to meet the competing demands of urbanization, pollution and the protection of the environment, to which Nigeria is not left behind. The question to ask is, how adequate and effective have the laws governing the environment and sustainable development been in regulating and protecting oil exploration activities and the environment in the Niger Delta? The purport of this paper is to examine whether the various environmental laws and principles of sustainable development have had any impact in protecting the Niger Delta region since the long
1

Report of the World Commission on Environment and Development: Our Common Future, http://www.un-documents.net/wced-ocf.htm <accessed on 20th January, 2012.
2

Kasum, A.S, Environmental degradation problems caused by human activities in Nigeria: enforced (taxation) versus voluntary (social responsibility) solution, Int. J. Banking, Accounting and Finance, Vol. 2, No. 3, 2010 p.239.
3

Ibid.

years of oil exploration activities in the region. To do these, the paper is divided into nine sub paragraphs, which will briefly examine meaning of some terms like environment, sustainable development, the Niger Delta region and environmental sustainability, ; types of environmental pollution; the laws and principles on environment and sustainable development; the Niger Delta region vis a vis the governing environmental laws and principles of sustainable development; the effect of those laws and government action; judicial intervention to issues of pollution, the challenges facing the region, the lessons learnt from the Niger Delta region and conclusion with some proffered recommendations towards ensuring environmental sustainability in the Niger Delta region and Nigeria as a whole.

1. BRIEF EXAMINATION OF TERMS A). ENVIRONMENT According to the Blackstone Dictionary4, environment is the totality of physical, economic, cultural, aesthetic and social circumstances and factors which affect the desirability and value of property and which also affects the quality of peoples lives5. From the perspective of physical and cultural landscapes, the physical or natural environment is environment in its natural state and the features include rivers and water bodies, trees, hills/mountains, mineral resources such as iron ore, gold, manganese, diamond, silver, columbite and petroleum, among others. The cultural landscape, on the other hand, denotes that an interaction has taken place between man and his environment. Such activities that are human-based include agriculture, mining operations, sinking of boreholes, wells, tree-felling, and construction of bridges, houses, road networks and railway, among others6. Environment was also defined in the FEPA Act as including water, air, land and all plants and human beings or animals living there in and the inter-relationship that exist among them7.

6th edition

This was the definition adopted by the Supreme Court in A.G Lagos State V A.G Federation [2003] FWLR, pt.168, p.909 at 1110 1111, (paras H A).
6

Dr. H.I Jimoh, Pattern of Environmental Degradation and the Development Efforts in the Nigerian Environment,
7

Section 38, Cap F10, LFN 2004

With regards to the above definitions, environment is perceived in this paper as the general surrounding where a number of interrelated activities take place, between man and the environment8. B). SUSTAINABLE DEVELOPMENT In 1987, the World Commission on Environment and Development (WCED) defined sustainable development as a development that meets the needs of the present without compromising the ability of future generations to meet their own needs9. This definition has used by the Brundtland Commission has become the most often quoted definition of sustainable development. The principle of sustainable development as opined by another writer10 requires that the environment be managed so as not to irreversibly damage the processions of nature or over tax them. Simply put, sustainable development is the use of natures resources to meet human needs while preserving the natural environment so that these needs can be met not only in the present, but in the infinite future. This principle aims at reconciling the apparent conflicts between environmental protection; economic development and the quality of life. Its relevance at the global, national and local levels are its value for setting the context for policy development and environmental laws11.

C). ENVIRONMENTAL SUSTAINABILITY This is defined as the ability of the environment to continue to function properly and indefinitely. This involves meeting the present needs of humans without endangering the welfare of future
8

As the natural environment is generally endowed with various quantities of resources within the space. Human beings regard the environment as a depot housing their needs and are therefore always seeking for ways of extracting these resources within the environment. Simmons, I. G, The Ecology of Natural Resources, (1981) London: ELBS Edward Arnold Ltd.
9

Our Common Future: The World Commission on Environment and Development. Ibid as in note 1.

10

Ajayi, W. Achieving Environmental Protection through the Vehicle of Human Rights: Some Conceptual Legal and Third World Problems. University of Benin Law Journal, (1995). Vol. 2, No. 1, p. 41.
11

Ezeabasili, Nkechi, Legal Mechanism for Achieving Environmental Sustainability in Nigeria, African

Research Review Vol. 3 (2), January, 2009. Pp. 370 www.ajol.info, Copyright IAARR: www.afrrevjo.net accessed on 08 January, 2012.

generations. The goal of environmental sustainability is to halt environmental degradation. An unsustainable situation occurs when natural capital (the sum total of natures resource) is used up faster than it can be replenished. Sustainability requires that human activity only uses natures resources at a rate at which they can be replenished naturally12. D). NIGER DELTA REGION The Niger Delta region of Nigeria is among the richest deltas in the world. It constitutes the coastline area of Nigeria, and occupies an area of over 70,000 square kilometers with approximately 853 km facing the Atlantic Ocean. The Niger Delta13 is the richest part of Nigeria in terms of natural resources. The area has large oil and gas deposits, as well as extensive forests, good agricultural land and abundant fish resources14. The Niger Delta consists of nine states (Abia, Akwa Ibom, Bayelsa, Cross River, Delta, Edo, Imo, Rivers and Ondo) and 185 local governments areas15.
Almost all the crude oil produced by Nigeria, which amounts to approximately 2.7 million barrels per day, comes from the Niger Delta region. Despite the crude oil production, the Delta is enormously rich in biological and cultural diversity and has become one of Africa's highest conservation priorities. This same ecosystem feeds and supports nearly seven million people, comprising 14 ethnic groups and over 25 different languages16.
12

Ezeabasili, Nkechi, Legal Mechanism for Achieving Environmental Sustainability in Nigeria,pp. 371372.
13

The region has some unique characteristics. For instance, it is one of the largest wetlands in the world and it is noted for its sandy coastal ridge barriers, brackish or shine mangroves, fresh waters, permanent and seasonal swamp forests as well as low land rain forests. The whole area is traversed and criss-crossed by a large number of rivers, streams, canals and creeks, while the mainland is subjected to regions of flood by the various rivers. Emmanuel Duru, The Politics of Oil in the Niger Delta, http://www.e-ir.info/2010/12/05/the-politics-of-oil-in-the-niger-delta/ accessed on 20th January, 2012
14

Collins Ugochukwu, Sustainable Environmental Management in the Niger Delta Region of Nigeria: Effects of Hydrocarbon Pollution on Local Economy, p.27. <http://opus.kobv.de/btu/volltexte/2008/569/pdf/Collins_Ugochukwu_PhD_Dissertation.pdf> accessed 20th January, 2012.
15

This description of the Niger Delta region, has been stated to includes all oil-producing areas and others considered relevant for reasons of administrative convenience, political expedience and development objectives, and therefore extends the land area to 75,000 square kilometers. UNDP (2006), Niger Delta Human Development Report, Abuja <http://www.hdr.undp.org/en/reports/nationalreports/africa/nigeria/name,3368,en.html> accessed on 30th December, 2011.
16

The Niger Delta region is extremely heterogeneous with respect to culture and ethnicity. The major linguistic and cultural groups the Ijaw, Edo, delta Cross-rivers, Yoruba and Igbo are each composed

Nigerian map highlighting the Niger Delta States17

Fishing and agriculture are the two major traditional occupations of the Niger Delta peoples. During the colonial era, forestry was introduced as a third major economic activity in the region. Today, though agriculture, fishing and forestry still account for about 44 per cent of employment, all three economic activities have declined since the ascendancy of the oil industry18.

2. ENVIRONMENTAL POLLUTION AND DEGRADATION Environmental Pollution is the introduction of contaminants into a natural environment that causes instability, disorder, harm or discomfort to the ecosystem i.e. physical systems or living

of numerous sub-groups. Collins Ugochukwu, Sustainable Environmental Management in the Niger Delta Region of Nigeria, p.45.
17

Idemudia, Uwafiokun and Uwem E. Ite, Corporate-Community Relations in Nigerias Oil Industry: Challenges and Imperatives, (Corporate Social Responsibility and Environmental Management), Vol. 13, (2006) pp.194-206
18

UNDP (2006), Niger Delta Human Development Report, Abuja

organisms19. It has also been defined20 as the addition to the natural environment of any substance at a rate that results in higher than natural concentrations of that substance, and therefore has an adverse effect. The major forms of pollution include21; air pollution22, light pollution23, littering24, noise pollution25, soil contamination26, radioactive contamination27, thermal pollution28,visual pollution29, water pollution30. Environmental degradation is the deterioration of the environment through depletion of resources such as air, water and soil (land), the destruction of ecosystems and the extinction of wildlife. Essentially, environmental degradation relates to the depreciation in the qualities and quantities of vegetation, soil air and water resources, among others. It may succinctly be described to mean a downward trend in the environmental resources such that their level of use in the human societies equally decreases at an increasing rate31. Environmental degradation is as a result of the dynamic
19

< http://www.merriam-webster.com/dictionary/pollution> accessed on 20th January, 2012. Yinka Omoregbe, Oil and Gas Law in Nigeria, 2001, Malthouse Law Books, p.127.

20

21

<http://en.wikipedia.org/wiki/Pollution> accessed on 20th January, 2012.

22

This occurs when chemicals and particulates are released into the atmosphere. E.g. of common gaseous pollutants include carbon monoxide, sulfur dioxide, chlorofluorocarbons (CFCs) and nitrogen oxides produced by industry and motor vehicles.
23

E.g. over-illumination.

24

Like the throwing of inappropriate man-made objects onto public and private properties. Eg pure water sachet.
25

This encompasses roadway noise, aircraft noise, industrial noise.

26

This occurs when chemicals are released by spill or underground leakage. Among the most significant soil contaminants arehydrocarbons, herbicides, pesticides and chlorinated hydrocarbons. Ibid.
27

Such as nuclear power generation and nuclear weapons research, manufacture and deployment. Ibid.

28

This is a temperature change in natural water bodies caused by human influence, such as use of water as coolant in a power plant. Ibid.
29

This can refer to the presence of overhead power lines, motorway billboards, open storage of trash, etc.
30

This happens through the discharge of waste water from commercial and industrial waste (intentionally or through spills)

into surface waters; discharges of untreated domestic sewage, and chemical contaminants, such as chlorine, from treated sewage; release of waste and contaminants into flowing waters (including urban runoff and agricultural runoff, which may contain chemical fertilizers and pesticides); waste disposal and leaching into groundwater; eutrophication and littering. Ibid.
31

Miller, G. T. Resources Conservation and Management. London: Wadsmonh Publishing Company, 1989, p.26

interplay of socio-economic, institutional and technological activities. Environmental changes may be caused by many factors, which includes economic growth, population growth, urbanization, agriculture32, rising energy use, and transportation. Poverty still remains a problem at the root of several environmental problems. In Nigeria, the discovery of oil in the Niger Delta and other mineral resources33 and their exploitation paved way for environmental hazards in Nigeria. The Niger Delta being the waterbed for the nations oil reserves has suffered grossly from environmental pollution and degradation mainly from oil, these issues will be further discussed in the paper. A). CURRENT ENVIRONMENTAL ISSUES FACING NIGERIA: Nigeria is faced with various environmental issues34 amongst which are; periodic droughts, soil degradation, rapid deforestation (due to uncontrolled logging), desertification, air and water pollution, oil pollution, oil spills (water, air and soil), gas flaring, industrial pollution, municipal waste generation and urban decay, loss of arable land, loss of flora and fauna, rapid urbanization and population pressure, erosion (coastal, marine gully, sheet erosion and land subsidence), flooding (coastal, river and urban flooding), inappropriate agricultural practices, destruction of watersheds, loss of biodiversity, soil-crust formation caused by loss of water and climatic change/ozone layer depletion.

B). ENVIRONMENTAL ISSUES IN THE NIGER DELTA

32

A traditional approach to the utilization of the environment is the tilling of soil in the form of agricultural practices. By this uncontrolled practice on virgin land, with the combination of rainfall, the consequence is usually one of splash erosion with the attendant cataclysmic effects on soil nutrient status and the general suitability for a number of other agriculture-related uses. Jimoh, H.I, Individual Rainfall Events and Sediment Generation on Different Surface in Ilorin, Nigeria, (Ph.D. thesis submitted to the Department of Geography), University of Ilorin, Nigeria (1997).
33

Such as tin in the Jos, Plateau State.

34

Center for International Environmental Law, http://www.ciel.org/Publications/CBPR Nigeria 9-1806.pdf accessed on 30th December, 2011.

Key environmental issues in the Niger Delta relate to the oil exploration35 in the region. These environmental issues are Oil spills, Loss of mangrove forests, Depletion of fish populations, Water hyacinth invasion, Canalization, Gas flaring and Effluent discharge and disposal. Each of these issues will be discussed below with its adverse effect on the human, plant, animal population and the ecosystem. It must however be stated that there are other environmental problems not related to the oil industry that occur in the Niger Delta36. This is because the natural terrain and hydrology of the Niger Delta have always caused certain environmental problems, especially flooding, siltation and occlusion37, erosion and the shortage of land for development38. The local people have lived with these problems for many years and have evolved ways of dealing with them which though may be ineffectively in addressing them. This paper however focuses on the environmental issues created by oil exploration. OIL SPILLS Oil spills are common occurrences in Niger Delta, they occur due to a number of causes includingcorrosion of pipelines and tankers (accounting for 50% of all spills), sabotage (28%) and oil production operations (21%) with 1% of the spills being accounted for by inadequate or nonfunctional production equipments39. The largest contributor to oil spills is the rupturing or leakage of production infrastructures that are old and lack regular inspection and maintenance. The reason
35

Oil extraction has impacted most disastrously on the socio-physical environment of the Niger Delta oil bearing communities massively threatening the fragile subsistent peasant economy and biodiversity and hence their entire social livelihood and very survival. The oil producing communities have basically remained dependent and underdeveloped, persistently disempowered, socio-culturally marginalized and psychologically alienated. The wealth derived from oil resource exploitation and exports benefit directly only the operators of the oil industry and the bureaucrats in government. Inya A. Eteng, The Nigerian State, Oil Exploration and Community Interest: Issues and Perspectives, <http://waado.org/Environment/PetrolPolution/EnvEconomics.htm> accessed on 20th January, 2012.
36

<http://www.ng.undp.org/publications/nigeria-delta-hdr.pdf> accessed on 20th January, 2012.

37

Siltation and occlusion happens when silt is carried down the Niger River system and deposited as water velocity and slackens in the more sluggish waters of the Niger Delta. Siltation reduces channel capacity, narrows creeks and reduces water depths. This increases the rate at which aquatic plants grow on waterways. The weeds occlude the navigable sections of waterways and hamper fishing. Ibid.
38

A shortage of land for development arises from the scarcity of dry and relatively well-drained land, especially in the barrier island forest, mangrove and freshwater swamp forest zones. This has made housing and settlement development very difficult and costly, and to some extent accounts for neglect of the region by successive governments. The dynamics of flood and tidal movement further reduces available land space, forcing many communities to engage in uncontrolled land reclamation with negative environmental impacts. Ibid.
39

Due to engineering drills, inability to effectively control oil wells, failure of machines, and inadequate care in loading and unloading oil vessels.

that corrosion accounts for such a high percentage of oil spills is a consequence of the small size oil fields in the Niger Delta. There is an extensive network of pipelines between the fields as well as numerous small networks of flow-lines (the narrow diameter pipes that carry oil from wellheads to flow-stations) allowing many opportunities for leaks. In inshore areas, most pipelines and flowlines which have an estimated life span of about fifteen years are old and susceptible to corrosion. Sabotage is also a cause of oil spill, this primarily occurs through bunkering, whereby the saboteur illegally taps the pipeline. Sometimes during extraction of the oil, pipelines are damaged or destroyed. Damaged lines may go unnoticed for days and repair of the damaged pipes takes even longer. Sabotage and theft through oil siphoning has become a major issue in Niger Delta states. Oil siphoning has become a big business with the stolen oil quickly making its way onto the black market40. LOSS OF MANGROVE FOREST Vegetation in the Niger River Delta consists of extensive mangrove forests, brackish swamp forests, and rainforests. The large expanses of mangrove forests are estimated to cover approximately 5,000 to 8,580 km of land. Mangroves remain very important to the indigenous people of Niger Delta because its a major source of wood for, as well as to provide essential habitat for rare and endangered species like the manatee and pygmy hippopotamus. Human impact from poor land management upstream coupled with the constant pollution of petroleum has caused five to ten percent of these mangrove forests to disappear. The quickly penetrating properties of petroleum have wiped out large areas of vegetation. When spills occur close to and within the drainage basin, the hydrologic force of both the river and tides force spilled petroleum to move up into areas of vegetation41.
40

Pagaebi Beregha, Environmental Issues In Nigeria: Oil Spillage in the Niger Delta, <http://thelawyerschronicle.com/index.php? option=com_content&view=article&id=115:environmental-issues-in-nigeria&catid=35:focus-on-thelaw&Itemid=53> accessed on 20th January, 2012.

41

Nwilo, Peter C., and Olusegun T. Badejo, Impacts And Management of Oil Spill Pollution Along the Nigerian Coastal Areas International Federation of Surveyors, 2007. <http://www.fig.net/pub/figpub/pub36/chapters/chapter_8.pdf> accessed on 12th January, 2012.

Mangrove forests are included in a highly complex trophic system. If oil directly affects any organism within an ecosystem, it can indirectly affect a host of other organisms. These floral communities rely on nutrient cycling, clean water, sunlight, and proper substrates. With ideal conditions they offer habitat structure, and input of energy via photosynthesis to the organisms they interact with42. DEPLETION OF FISH POPULATION The fishing industry is an essential part of Nigerias sustainability because it provides much needed protein and nutrients for not just the people of the Niger Delta but also other parts of the country. However, with the higher demand on fishing, fish populations are declining as they are being depleted faster than they are able to restore their number. Overfishing is not the only impact on marine communities. Climate change, habitat loss, and pollution are all added pressures to these important ecosystems. Also settlement by people along the shores of the rivers and coasts, have affected the marine and terrestrial habitats which are being lost and the ecosystems being drastically changed. A factor responsible for this is that the slightest change in water temperature can be fatal to certain marine species along the shoreline of the Niger River43. Also trees and shrubs which also provide shade and habitat for marine species, while reducing fluctuation in water temperature are being uprooted due to human activities44. WATER HYACINTH INVASION Water hyacinth is an invasive species that was introduced into Africa as an ornamental plant, and which thrives in polluted environments. Water hyacinth has the capability to completely clog the waterways in which it grows, making it nearly impossible to navigate fishing boats45. In recent
42

Dr. Janice Limson, Indigenous Plants to the Rescue Environmental remediation in Nigerian oil regions; Science in Africa.

<http://www.scinceinafrica.co.za/2002/february/oil.htm> accessed on 12th January, 2012.

43

The Niger River is an important ecosystem that needs to be protected, for it is home to 36 families and nearly 250 species of fish, of which 20 are endemic, meaning they are found nowhere else on Earth. World Wildlife Fund. 2006. Fishing on the Niger River. <http://www.panda.org/news_facts/multimedia/video/index.cfm?uNewsID=61121> accessd on 20th January, 2012.
44

Molles Jr, M.C.: Ecology Concepts and Applications 3rd Edition, Pg. 93-94. McGraw-Hill Companies Inc, 2005.
45

Fuggle, R.F.: Africa Environment Outlook Lake Victoria: A Case Study of Complex Interrelationships. 75-85, United Nations Environment Program, 2004.

10

years it has found its way into the Niger River, choking out both sunlight and oxygen to the marine organisms that live there. When a species such as water hyacinth makes its way into the ecosystem, it competes with native plants for sunlight, diminishing energy resources within the marine environment. With the loss of energy some populations will not be able to survive, or their numbers may drop beyond a point of no return, thereby creating a threatened environment. Apart from the loss of energy, water hyacinth also takes up and depletes the water of oxygen which is essential to the livelihood of all marine organisms46. GAS FLARING Gas flaring is an extremely wasteful and environmental harmful practice as it is a major contributor of greenhouse gas47. Gas flaring releases large amounts of methane, which has a high global warming potential. This methane is accompanied by other greenhouse gas like carbon dioxide, of which Nigeria was estimated to have emitted more than 34.38 million metric tons of in 2002, accounting for about 50% of all industrial emissions in the country and 30% of the total CO2 emissions. While flaring in the west has been minimized, in Nigeria it has grown proportionally with oil production48. CANALIZATION This is done by the oil companies in the attempt to shorten travel time and improve access to oilfields and production facilities, oil companies have constructed canals that in some cases have caused saltwater to flow into freshwater zones, destroying freshwater ecological systems. Increased access to new areas has also aggravated illegal logging activities. Oil companies constantly dredge
46

Ibid.

47

Greenhouse gases are chemical compounds found in the atmosphere which are necessary to sustain life on earth because they serve as a blanket and let the suns ray enter, but stop much of the heat from escaping, thus keeping the planet warm enough to allow life. They include water vapor, carbon dioxide (CO2), nitrous oxide (N2O), chlorofluorocarbons (CFCs), methane (CH), hydro fluorocarbons (HFCs), per fluorocarbons (PFCs) and sulphur hexafluoride (SF6). These chemicals trap infrared radiation from the earths surface and thus cause the green house effect. When there is an increase in greenhouse gases concentration, thus allowing for more infrared radiation being captured in the atmosphere, it in turn causes climate change which has now become a global problem. <http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_appendix.pdf> accessed on 26th November, 2011.
48

Shell who is the biggest culprit of gas flaring in Nigeria, claims that only 50% of all associated gas is burnt off via flaring, however these data are contested, as the World Bank reported in 2004 that, Nigeria currently flares 75% of the gas it produces. Gas flaring in Nigeria: A human rights, environmental and economic monstrosity. Friends of the Earth Nigeria. <http://www.climatelaw.org/cases/country/nigeria/cases/casedocuments/nigeria/report/gas.flaring.in.nigeria.html> accessed on 20th January, 2012.

11

river channels to facilitate navigation. The material dredged from the canals is often dumped on the channel banks, which disrupts the hydrology of these essentially flat and low-lying coastlands. The elevated banks restrict the free flow of water and create ponds that can be detrimental to vegetation and the local ecology49. EFFUENT DISCHARGE AND DISPOSAL Like most industrial enterprises in Nigeria, the oil companies lack appropriate waste treatment facilities, and there are no proper landfills. Consequently, the wastes generated by the oil operators are discharged onto land, into mangrove and freshwater swamps, and into the sea. Untreated wastes degrade water quality and the ecology of the receiving environment, and harm human health50. Refinery waste contains very toxic chemicals, which constitutes potential land, water and air pollutants. Atmospheric contaminants from refinery operations include oxides of nitrogen, carbon and sulphur. Liquid refinery effluents usually contain oil and grease. These compounds contain organic chemicals such as phenol cyanide, sulphide-suspended solids, chromium and biological oxygen demanding organic matter, which on getting in contact with land and water pollute them51. THE EFFECT AND SOCIAL IMPACT OF POLLUTION IN THE NIGER DELTA The oil exploration activities in the region has had adverse effects on fishing and farming which are the traditional means of livelihood of the people of the oil producing communities in the Niger Delta. For the mangrove forests, which are especially susceptible to oil (mainly because it is stored in the soil and re-released annually during inundations), immense tract of it have been destroyed 52. Also, spills in populated areas often spread out over a wide area, destroying aquacultures through contamination of the groundwater and soils. The consumption of dissolved oxygen Oil by bacteria feeding on the spilled hydrocarbons also contributes to the death of fish.
49

<http://www.ng.undp.org/publications/nigeria-delta-hdr.pdf> accessed on 20th January, 2012. Ibid. accessed on 30th December,

50

51

<http://waado.org/Environment/PetrolPolution/EnvEconomics.htm> 2011.
52

An estimated 5 to 10% of Nigerian mangrove ecosystems have been wiped out either by settlement by people or oil. The rainforest which previously occupied some 7,400 km of land has disappeared as well. Bronwen Manby, The Price of Oil , Human Rights Watch. 1999. <http://www.hrw.org/reports/1999/nigeria> accessed on 15th January, 2012.

12

contamination affects the fish population and affects the farmers that rely on fishing to support their family. It has also adversely affected the soil and forest of the Niger Delta communities. This has ultimately affected peasant agriculture, as farmers are made landless from the contamination; they therefore migrate to other more fertile lands in other rural communities and thus put pressure on scarce fertile lands. While some displaced farmers migrate to urban areas in search of other means of livelihood. Gas flares have potentially harmful effects on the health and livelihood of the communities in their vicinity, as they release a variety of poisonous chemicals including nitrogen dioxides, sulphurdioxide, volatileorganic compounds like benzene, toluene, xylene and hydrogen sulfide, as well as carcinogens like benzapyrene and dioxin. Humans exposed to such substances can suffer from a variety of respiratory problems. These chemicals can aggravate asthma, cause breathing difficulties and pain, as well as chronic bronchitis. Benzene known to be emitted from gas flares in undocumented quantities is well recognized as a cause for leukemia and other bloodrelated diseases53. Gas flares are often located close to local communities, and regularly lack adequate fencing or protection for villagers who may risk working near heat of the flare. Many of these communities claim that nearby flares cause acid rain54 which corrodes their homes and other local structures, many of which have zinc-based roofing. Some people resort to the use of asbestosbased material, which is stronger in repelling acid rain deterioration. Unfortunately, this only contributes to their declining health and their environment. Asbestos exposure increases the risk of forming lung cancer, pleural and peritoneal mesothelioma, and asbestosis55. Older flares are rarely
53

A study done by Climate Justice estimates that exposure to benzene would result in eight new cases of cancer yearly in Bayelsa State alone. Gas flaring in Nigeria: A human rights, environmental and economic monstrosity. <http://www.climatelaw.org/cases/country/nigeria/cases/casedocuments/nigeria/report/gas.flaring.in.nigeria.html> accessed on 20th January, 2012.
54

A researcher from the institute of Oceanography, University of Calabar indicated that rain water samples at Ekpene Obo town of Esit Eket Local government area, contained high levels of acidity resulting in corrosion of corrugated roofs. The study revealed that an acid rain of pH 5.4 was measured in a sample from Eket. A comparison roof rainfall showed a marked drop in chloride content from 1,050 mg/l in the direct rain water to 28.4 mg/l in the roof rainwater. This drop is attributed to the reaction between HCL in rain and zinc in roofing material. The main source of these acids in rain water at Eket is the Exxon Mobil gas flaring operations at onshore and offshore locations. During the wet season, flare gases are carried inland through Eket and its environs by South West Trade winds leading to persistent acidic rain in these communities with attendant infrastructural damages. Akpan, E.R, Acidic Precipitation and infrastructural deterioration in oil producing communities of Akwa Ibom State: a case study of Eket, South Eastern Nigeria, Global Journal of Environmental Sciences,(2003) pp 47-52.
55

Asbestos: health effects Agency for Toxic Substances and Disease Registry. <http://www.atsdr.cdc.gov/asbestos/asbestors/health-effects/>; Oil For Nothing: Multinational Corporations, Environmental Destruction, Death and Impunity in the Niger Delta Essential Action,

13

relocated away from villages, and are known to coat the land and communities in the area with soot and to damage adjacent vegetation. Almost no vegetation can grow in the area directly surrounding the flare due to the prevailing heat56. People in the affected areas complain about health issues including respiratory problems, skin rashes, tumors, gastrointestinal problems, cancers and malnourishment; many have lost basic human rights such as health, access to food, clean water, and an ability to work.

3. ENVIRONMENTAL LAWS AND THE PRINCIPLES SUSTAINABLE DEVELOPMENT. International law since the beginning of 19th century has played a significant role in the protection of the environment. International environmental law has developed rules and principles governing multilateral treaties expressing common global concern, as well as those governing trans-boundary relationships involving two or more neighboring states. Nigeria has not only acceded to some of these bilateral and multilateral treaties regulating the environment but has a gone a step further to domesticate some of the treaties. For the purpose of this paper however, emphasis will be placed on laws in relation to oil pollution and pollution in relation to that experienced in the Niger Delta. These international agreements regulate different aspects of oil pollution damage by prohibiting certain conduct, imposing liability, setting up compensation schemes, pollution control and establishing reporting and response systems.

INTERNATIONAL ENVIRONMENTAL CONVENTIONS/TREATIES Some of the international laws/treaties are: Basel Convention on the Control of Trans-boundary Movement of Hazardous Wastes and their Disposal, 1989; Protocol to the Framework Convention on Climate Change, Kyoto, 1997; Rio Declaration, 1992; Stockholm Declaration, 1972; The Convention of the High Sea, 1958; Montreal Protocol on Substances that Deplete the Ozone Layer, 1987; International Convention on Civil and Political Rights, 1966; International Convention on Civil Liability for Oil Pollution Damage, 1969; International Convention on the Establishment of
2000. <http://www.essentialaction.org/shell/report/> accessed on 20th January, 2012.
56

Bronwen Manby, The Price of Oil Human Rights Watch. Ibid as in note 46.

14

an International Fund for Compensation for Oil Pollution Damage, 1971; International Convention for the Prevention of Pollution of the Sea by Oil 1954, as amended in 1962; International Convention on the Prevention of Marine Pollution by the Dumping of Wastes and Other Matters, 1972; Convention on Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central Africa Region, 1981; African Charter on Human and Peoples Right, 1981and The International Covenant on Economic, Social and Cultural Rights. It must however be stated that some of these treaties have not been domesticated into the Nigerian laws57. Reference will be made to some of these treaties in relation to the Nigerian environmental law as it relates to the Niger Delta in the course of the paper. The table below contains some of the International Environmental Laws, Conventions and Treaties Ratified into law by Nigeria58.

CONVENTION / TREATY

Date ratified

Convention on the Protection of the World Cultural and Natural Heritage 1974 1972 Convention on the Prevention of Marine Pollution by the Dumping of Wastes 1972 Convention on International Trade in Endangered Species (CITES) 1973 1974

Convention on the Conservation of Migratory Species of Wild Animals 1987 (Signatory only) Convention on the Law of the Sea 1982 1986

International Convention for the Prevention of Pollution of the Sea by Oil, 1968
57

Therefore, compliance with these laws is merely persuasive since international law recognizes the sovereignty rights of each State. States that are not signatories or parties to the convention have no business complying with the law. Where however, a state party breaches the law, economic sanctions could be adopted by the other states signatory to that treaty to compel obedience to the treaty, therefore international environmental law could largely be said to be inchoate and for this, it is not a very effective weapon for achieving sustainable development in terms of environment hence the continuous call for domestication of some of these treaties. Ezeabasili, Nkechi, Legal Mechanism for Achieving Environmental Sustainability in Nigeria, p. 375.
58

Source: Nigeria ETOA, April 2002 <http://www.encapafrica.org/documents/biofor/Nigeria%20Environmental%20Analysis

%20Report%202005%20Update.pdf>; Federal Republic Nigeria Fourth National Biodiversity Report Abuja 2010, <http://www.cbd.int/doc/world/ng/ng-nr-04-en.pdf> accessed on 05th January, 2012.

15

1954-62 The International Convention on Civil Liability for Oil Pollution Damage 2006 (Ratification and Enforcement) Act, 1969 Vienna Convention on the Protection of the Ozone Layer 1985 Montreal Protocol on Substance that Deplete the Ozone Layer 1987 2001 1988

Basel Convention on the Trans-boundary Movement of Hazardous Wastes 1991 and their Disposal 1989 Framework Convention on Climate Change (FCCC) 1992 Kyoto Protocol 1997 Convention on Biological Diversity (CBD) 1992 Convention on Desertification (CD) African Charter on Human and Peoples Right PRINCIPLES OF SUSTAINABLE DEVELOPMENT As international environmental law, is no longer exclusively concerned with reparation for environmental injury, but also measures to ensure the control and prevention of environmental harm and the conservation and sustainable development of natural resources and ecosystem of the whole biosphere59. To this end various laws and treaties have emerged for this purpose of environmental protection. The international laws and treaties relating to principles of sustainable development started from the Stockholm Declaration where it was agreed that there was the urgent need to respond to the problem of environmental deterioration60. The Brudtland report of 1987 came after Stockholm and defined sustainable development. The report suggested that international governments should meet to
look at how to best reduce the effects of human activities on the environment for future generations.

1994 2004 1994 1997 1990

59

A.B, Abdulkadir and I.Imam, An Examination of the Applicability of international Environmental Law Principles In National

Courts, [Petroleum and Natural Resources and Environmental Law Journal] Vol.1, no.3, 2009, p.50.
60

Report of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972 (United Nations publication, Sales No. E.73.II.A.14 and corrigendum), chap.I. The conference led to the establishment of the United Nations Environment Program (UNEP) and other environmental organizations.

16

This led to the first Earth Summit, held in Rio, Brazil in 1992, known as the Rio Declaration, 199261,

which proclaimed the 27 Principles that the protection of the environment and social and economic development are fundamental to sustainable development. Sequel to this declaration a global program to achieve such development was adopted, titled Agenda 2162. This program which was built on the Rio declaration was a significant milestone that set a new agenda for sustainable development. The worlds nations have met in several major conferences under the auspices of the United Nations, like the Johannesburg Summit on Sustainable Development, 200263, these conferences defined for the world a comprehensive vision for the future of humanity. It is pertinent to note that treaties on sustainable development have incorporated some principles of international environmental law and customary international law principles. Principles like; no harm principle which has been embodied in Principle 21 of the Stockholm Declaration 64; The precautionary principle65, which may be said to be the basis for Environmental Impact Assessment laws; The polluter pays principle which is more of a principle of economic policy for allocating the cost of pollution, rather a legal principle, but it has certain implications for the development of international environmental law66. Other principles include the equal access and non discrimination and principle to co-operate with other states. All these laws and principles have been applied in the international setting when the occasion called for it. However, these laws and principles will be of no use at the national level if not given recognition and adherence by the national laws and
61

Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3- 14 June 1992 (United Nations publication, Sales No. E.93.I.8 and corrigenda), vols. I-III
62

Ibid; vol. I: Resolutions adopted by the Conference, resolution 1, annexes I and II. Agenda 21 committed governments to seek ways to move towards a more sustainable future. This looked at social developments, such as reducing poverty, improving education and strengthening the representation of different groups such as youth, women and indigenous peoples.
63

Ten years after the first Earth Summit in Rio, a conference in Johannesburg met to review progress towards sustainable development. This conference looked at social issues such as poverty and poor sanitation that affect an estimated 1.1 billion people worldwide.
64

It affirms the sovereign right of states to exploit their own resources pursuant to their environmental policies and their responsibility to ensure that activities within their environment or control do not cause damage to the jurisdiction of other states or to areas beyond the limits of national jurisdiction.
65

The rule that states must not cause or permit to be caused serious or significant harm to other states or common spaces. This principle was enunciated in the Corfus Channel case. Also art 206 of the United Nations Convention of the Law of the Seas [UNCLOS] 1982, requires states having reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution to the marine environment to as far as practicable assess the potential effect of such activities on the marine environment and report the result of such assessment to the IMO.
66

Abdulkadir et al, An Examination of the Applicability of international Environmental Law Principles In National Courts, p.58.

17

courts. In the course of this paper, the application of these laws and principles will be enunciated with regards to the national environmental laws concerning the Niger Delta. NATIONAL ENVIRONMENTAL LAWS Nigeria is not dependent on international laws only to regulate its environment. The basis of environmental policy in Nigeria is contained in section 20, 1999 Constitution of the Federal Republic of Nigeria, the State is empowered to protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria. Though the awareness towards environmental protection was not seriously taken and laws regulating the environment were not enacted till around 1987 when the Koko dumping triggered the first legislation in The Harmful Waste (Special Provisions, etc.) Act. Several national laws have however been enacted to regulate various aspects of the environment. These laws with particular reference to some of the laws regulating the environment of the Niger Delta Region67 include: i. ii. iii. iv. v. vi. vii.
67

Minerals Ordinance of 191468 Oil in Navigable Waters Act69 Petroleum Act70 Oil Pipelines Act71 Associated Gas Re-injection Act72 Federal Environmental Protection Agency Act73 Environmental Impact Assessment Decree74

The oil and gas industry can rightly argue that they have been concerned with environmental laws and regulations for over two decades. This is because the oil and gas industry is a complex combination of interdependent operations comprising exploration and production operations, processing of crude oil into consumer products, transportation and marketing activities and more recently gas extraction. At each stage of these operations, gaseous, liquid and solid waste materials are produced and discharged. These can, if not properly discharged and controlled, adversely affect the nation's air, water, and soil. For this reason a wide range of laws and regulations to control pollution in the oil and gas industry have been promulgated. Akinjide & co, Nigeria: Legal Aspects Of International Environmental Protection - The Nigerian Oil Spill, <http://www.mondaq.in/article.asp? articleid=2375> accessed on the 20th January, 2012.
68

As amended in 1925, 1950 and 1958. See Cap 12 L.F.N 1958 Cap O.6 LFN 2004 Ibid. Cap P.10 Ibid. Cap O.7 Ibid. Cap A.20 Ibid. Cap F.10 Ibid. Cap E. 12

69

70

71

72

73

74

18

viii. ix. x. xi. xii. xiii. xiv. xv. xvi. xvii. xviii.

Hydro Carbon Oil Refineries Act75 Criminal Code Harmful Waste (Special Criminal Provisions, Etc) Decree 198876 Sea Fisheries Decree77 Petroleum Products And Distributions Act78 Territorial Waters Act79 Land Use Act 1978 Niger Delta Development Commission Act80 African Charter on Human and Peoples Right The National Oil Spill Detection and Response Agency (Establishment) Act 2006. The National Environmental Standards and Regulations Enforcement Agency (Establishment) Act 2007

States have also promulgated environmental laws within the limits of the powers conferred on them by the Constitution. Some of these laws are: In Lagos State, the Lagos State Environmental Protection Agency Law Akwa Ibom State enacted the Environmental Protection and Waste Management Agency Law

4. APPLICATION OF PRINCIPLES AND LAWS REGULATING THE ENVIRONMENT IN THE NIGER DELTA IN ENSURING SUSTAINABLE DEVELOPMENT It can be seen from the various legislations highlighted above that attempt has been made by the Nigerian government in making legislations towards environmental protection and pollution. However, the question to ask is how adequate have these laws been in ensuring protection for the environment especially in the Niger Delta region? A brief review of some of these laws will show

75

Ibid. Cap H.5 Ibid. Cap H.1 Ibid. Cap S.4 Ibid. Cap P.2 Ibid. Cap T.5

76

77

78

79

80

Ibid. Cap N.68

19

how inadequate, inapplicable and obsolete they are to ensure environmental sustainability and development. THE 1999 CONSTITUTION The 1999 Nigerian Constitution in section 20 outlines the environmental objectives for the state to protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria. However, this provision is not justiciable in any court of law by virtue of section 6(6), (c) of the said constitution, which oust the jurisdiction of the court in determining issues brought under the Fundamental Objectives and Directive Principles of State Policy81. This part of the constitution was reviewed in Gani Fawehinmi v Abacha82 and it was held that the court is prevented from entertaining or deciding on any of the provisions contained in that chapter. The effect of this ouster clause is that the Niger Delta people are being denied these rights(environmental) as entrenched in the constitution it is therefore illogical for provisions contained in the constitution of a country not to be made enforceable, more particularly has it relates to the rights, welfare and development of the citizens83. THE LAND USE ACT The Land Use Act vests the ownership, management and control of land in the state in the governor of each state84. The land is held in trust and administered for the use and benefit of all Nigerians and allocated with his authority for commercial and agricultural purposes. Virtually, the entire land and offshore of the Niger Delta region of Nigeria are covered by oil mining license and Prospecting Licenses that entitle the oil firms operating in this region to enter onto peasant land85. The land use act as a legal instrument authorizing the activities which have led to this pollution and
81

Set out in Chapter II of the 1999 Constitution

[2001] 4 S.C.N.J. 400.

82

83

The preamble of the constitution reads and to provide for a constitution for the purpose of promoting the good governance and welfare of all persons in our country on the principles of freedom, equality and justice; and for the purpose of consolidating the unity of our people. The question is how equal or just has the implementation of the constitution in terms of the welfare and development of the Niger Delta being a part of Nigeria that supplies the resources used for economic growth.
84

Section 1 of the Act.

85

Aghalino, S. O, Oil Mineral Exploitation, Environmental Deterioration and Public Policy in Nigeria, Calabar Journal of Politics and Administration, 2004, vol.2, no.122, pp.39 50.

20

degradation of the region raises so many issues. These issues have even led to the cause of grievance of the people, they include; right to adequate compensation86, right to natural resources87, right to development88. The question is of what benefit is the land which is being held in trust for the common benefit and use of all to the Niger Delta region, since it has deprived them of their source of sustenance in farming and fishing and adding pollution of various forms to the health and environmental condition. The administrative power over the land invested in the governor is being used like a fiat to the oil companies to do as they please without reckoning. It is humbly submitted that the Act needs to be reviewed in line with modern practice of land tenure and oil exploration activities. This will enable proper monitoring and make it possible to usher in the needed sustainable development in the region. PETROLUEM ACT This Act is the primary legislation on oil and gas activities in Nigeria and it promotes safety and environmental protection. It generally empowers the Minister to make regulations89 for the prevention of pollution of watercourses and the atmosphere90. The regulations which are made are not in tune with the effect of such pollution taking place in the Niger Delta as there is no protection
86

Sec 29 (4) makes provision for compensation payable on land the subject of a revocation of the right of occupancy. The agitation against the Act is the inadequate compensation being paid since oil had been discovered at Oloibiri, Bayelsa State in 1956.
87

This right stems from the international law right of indigenous people of which the some are of the opinion that people of the oil communities are indigenous people and thus have these rights. The International Labor Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries 1989 defined the concept of indigenous people as peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.
88

This is an international acclaimed right contained in various development treaties particularly the African Charter which is part of the national laws of Nigeria.
89

Example of such regulation is regulation 25 Petroleum Regulations 1969. which states that the licensee or lessee shall adopt all practicable precautions including the provisions of up to date equipment approved by the Director of Petroleum Resources to prevent pollution of inland waters, river, water course, the territorial waters of Nigeria or the high seas by oil, mud or other fluid or substances which might cause harm or destruction to fresh water or marine life and where any such pollution occurs or has occurred, shall take prompt steps to control and , if possible, end it. This provision suffers from two defects, first of all a rather vague legal duty is imposed , as all the operator is enjoined to do is to take prompt steps to control and if possible end the pollution in question. Secondly, it does not deal with land pollution at all. Also the Petroleum Regulations 1967 contains provision against leakage of petroleum products. Penalties for non-compliance are revocation and a fine of N100 with the option of imprisonment.
90

Section 9 (1), (b), (iii)

21

against land pollution and where penalty is imposed for non compliance, especially on water pollution, they are too mild and hardly ever enforced. THE ASSOCIATED GAS RE-INJECTION ACT The Act deals with gas flaring activities of oil and gas companies in Nigeria. It compels oil and gas producing companies in Nigeria to submit preliminary program for gas reinjection. Section 3 (1) prohibits gas flaring in Nigeria without lawful permission. Irrespective of this provision not much has been achieved on this issue91, though in recent years there has been a definite shift, due to the awareness of climate change, government have therefore given fresh deadlines to stop gas flaring and they have also pledged to provide incentives to businesses wishing to invest in the economic utilization of the gas being flared92. It is quite pathetic that this Act is supposed to be the legal regime regulating the issue of gas flaring, but it is has not achieved anything on the issue except on paper; this is because gas flaring is still going on in most part of the Niger Delta region. The problem lies with enforcement by the government as it seems as if the economic impact realized from the oil companies is more beneficial than the health and environmental hazards they cause for the citizens. CRIMINAL CODE Section 245 of the Act prohibits the fouling of water of any spring, stream, well or tank or place, such that it is rendered less fit for the purpose for which it is ordinarily used. The criminal code is applicable to all the states of the Niger Delta, but it remains to be seen if any oil company will be brought to book for the pollution to the places specified in the provision as the streams which the people use for bathing, washing, cooking and fishing is no more fit for its ordinary use.

91

The penalty for non compliance was forfeiture of concessions. The deadline was fixed for January 1984 and later extended to April and then to January 1985. The Associated Gas Reinjection (Continued Flaring of Gas) Regulations 1984 came into force, it provided for exemptions to the general ban on flaring. With the effect of exempting 55 of 84 Shell oil fields, 10 of 15 Mobils, 4 of Agips 22, 7 of 17 Gulf now Chevron, 3 of Texacos 5, 4 of Elfs 6, 1 of Ashlands 3 and 1 each of Tenneco and Pan Ocean (making 86 out of 155 oil fields being exempted from the anti flaring provisions). The government claimed the laws were promulgated despite the absence of infrastructure for associated gas utilization and there was the problem of finance. Omorogbe Y, An Appraisal of Nigeria Natural Gas Legislation, vol.4, Issue 2, Oil and Gas Law and Taxation Review (1988/89), p.51.
92

Nigeria has initiated natural gas projects like, the Oso Condensate Project, Escravos Gas Project, Liquefied Natural Gas Project, and West African Gas Pipeline Project. These are laudable but time will tell if this will be like past projects initiated by the government, which are always buried in the chest of bureaucracy.

22

OIL IN NAVIGABLE WATERS ACT This was a decree of the then Military Government to implement the terms of the International Convention for the Prevention of Pollution of the Sea by Oil 1954-62 to which Nigeria is a signatory. It makes provision for the prevention of pollution by oil in the nations navigable waters. PETROLEUM PRODUCTS AND DISTRIBUTIONS ACT This act makes the offence of sabotage which could result in environmental pollution punishable with a death sentence or as imprisonment term not exceeding 21 years. OIL PIPELINE ACT Section 11 (5) of the Act creates a civil liability on the person who owns or is in charge of an oil pipeline, by making the person liable to pay compensation to anyone who suffers physical or economic injury as a result of a break or leak in the pipeline. Generally, the above laws have neither been effective in curbing ecological damage caused by oil pollution and gas flaring nor have they been able to prevent activities deleterious to the environment. These laws tend to under estimate the long term problems of environmental damage, oil activities have caused on the Niger Delta region. The laws mostly deal with measures to prevent pollution while they are silent on the consequences that should follow when pollution occurs or the penalty for breach is not proportional to the offence and are never enforced. HARMFUL WASTE (SPECIAL CRIMINAL PROVISIONS, ETC) ACT. The first serious and action oriented legislation on environment in Nigeria was made in 1988, in a swift reaction to the dumping of toxic waste at Koko port with the promulgation of two decrees 93. The Harmful Waste (Special Criminal Provisions, etc) Act objective was prohibiting the carrying, depositing and dumping of harmful waste on any land, territorial waters, contiguous zone, exclusive economic zone of Nigeria or its inland water ways and prescribing severe penalties for any person found guilty of these crimes. These decrees were followed by official release on the
93

Harmful Waste (Special Criminal Provisions, etc) Decree and Federal Environmental Protection Agency Decree. The public outcry from the Koko incident also led to the adoption on the international level the Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal, 1989 and the Bamako Convention on the Ban on the Import into Africa and the Control of Trans-boundary Movement and Management of Hazardous Wastes Within Africa, 1991

23

National policy on the Environment in 1989 with the goal of sustainable development in the country94.

FEPA ACT The Act is the most comprehensive attempt at giving legal teeth to the protection and sustainable development of the Nigerian environment. The Act accorded the Agency virtually unlimited powers and functions for the protection of the Nigerian environment. In the realization of its mandate, FEPA issued about eight Guidelines and Regulations dealing with different aspects of the Nigerian environment95. It is however sad to note that, the Act did not fair very well 96. For example, FEPA did not carry out an initial ecological audit of the oil-bearing enclave of the Niger Delta without which, it is impossible to monitor the impact of oil and gas exploration and production over time97. It is also worth noting that despite the enormous powers conferred on FEPA, it was not able to apply legal sanctions on any defaulting oil firms in Nigeria 98. Also, section 21 of the Act which provides that in the event of spill emanating from sabotage, oil firms are not liable to pay compensations but are enjoined to clean up the environment where such spills occurred; has provided a defense for the Oil companies in Nigeria, who have taken advantage of this sabotage alibi and absence of effective regulations to perpetrate irresponsible practices and adopt production methods which maximize profit and minimize investment in environmental safety. The oil companies in Nigeria adopt the most direct and inexpensive methods of waste disposal. These include indiscriminate dumping of drilling mud, drill cuttings, and dumping of
94

Securing for all Nigerians a quality of environment adequate for their health and well-being; Conserving and using the natural resources for the benefit of present and future generations; Restoring maintaining and enhancing the ecosystem and ecological processes essential for the preservation of biological diversity; Raising public awareness and promoting understanding of the essential linkages between environment and development and; Cooperating with other countries and international organizations and agencies to achieve the above.
95

National Guidelines and Standards for Industrial Effluent, Gaseous Emission and Hazardous Wastes Management in Nigeria, 1991; National Environmental Protection (effluent Limitation) Regulations, 1991; National Environmental Protection (Management of Hazardous Wastes) Regulation, 1991; etc.
96

The FEPA Act has been repealed and replaced by the NESREA Act, 2007

97

Aghalino, S. O, Oil Mineral Exploitation, Environmental Deterioration and Public Policy in Nigeria, p.42.
98

With the coming of the civilian administration in May, 1999, the Federal Ministry of Environment was established and FEPA was absorbed into it and for more than thirteen years of its inception, the Federal Ministry of Environment has been witnessing the pollution and degradation of the Nigerian environment especially in the Niger Delta region by oil multinationals and has taken no legal action or tangible corrective act to stop the pollution and degradation.

24

sludge, practices which differ from stringent environmental regulations in the metropolitan countries of the oil majors99. NESREA ACT This Act replaced the repealed FEPA Act100 and became the primary law on environmental protection while the new Agency has replaced the old Agency. It is largely a reproduction of the repealed Act, and an effort on the part of the government to address the issue of environmental pollution by emphasizing the need for the enforcement of the relevant laws and regulations 101. It is however unfortunate that the powers of the Agency do not extend to environmental issues arising from the oil and gas sector102. This is a negative implication for the Niger Delta region as this apparent lacuna is too gross for the Act to omit, considering the fact that the nations economy is majorly based on oil proceeds, of which oil activities which take place in the Niger Delta region causes devastating environmental pollution. For the NESREA Act which is the primary environmental law of the country not to address the oil and gas environmental problems is really unfortunate. EIA ACT The promulgation of the EIA103 Act brought about the establishment of a formal legislative framework for EIA in Nigeria104. The EIA Act seeks to ensure that all activities by all persons are
99

Ibid. p.42 By virtue of section 36, NESREA Act. Like the FEPA Act, NESREA is to be administered by the Ministry of Environment.

100

101

102

The Agency may enforce international agreements on the environment including oil and gas (Item 3, section 7); it cannot enforce compliance with regulations on the importation, exportation and production of hazardous chemicals from the oil and gas sector or enforce compliance with regulations on noise, air, land, sea, oceans etc in the oil and gas sector (Item 8, section 7); the Agency cannot even conduct environmental audit and establish data bank of regulatory mechanisms in the oil and gas sector (Item 11, section 7); the Agency cannot create public awareness or provide environmental education on sustainable environmental regulations in the oil and gas sector (Item 12, section 7)
103

Environmental impact Assessment involves the identification, prediction and evaluation of potential environmental impacts associated with a specific development proposal, program or policy.- Ajayi O, Environmental Impact Assessment and Sustainable Development, A Review of the Nigerian Framework, Nigerian Current Legal Problems, vols.2&3, (1993-1995), NIALS, p.13.
104

Prior to its promulgation, the operators of various industries especially the oil industry, had a department for environment, which usually carries out EIA under guidelines prepared by its Environment and Safety section. Jonathan Ehusani and Mohammed Etudaiye, A Critical Analysis of the Existing Legal Regime for Environmental Protection, (Law and Climate Change in Nigeria, Faculty of Law, University of Ilorin, 2011), p.235.

25

subject to environmental considerations at the commencement of projects identification and planning in order to indicate an environmental ethic in all citizens, persons and institutions in the country. It also aims at free dissemination of information relating to the environmental impact of activities to relevant interested parties and the public generally105. The importance of EIA as a tool for sustainable development is underlined by Article 11 of the Convention on Biological Diversity, which requires all parties thereto, to ensure that the appropriate procedures for impact assessment of proposed projects are dully taken into consideration. This is also contained in Principle 17 of the Rio Declaration106. It must to be acknowledged that Nigeria has taken serious steps to develop effective environmental strategies by the promulgation of the EIA Act and all the procedural guidelines, however in practice the Act like other environmental legislations have been reduced to mere paper work. The Act suffers failure at the implementation stage as EIA is hardly undertaken prior to the approval of any project. In the developed countries, compliance with environmental standards is best achieved not only when government regulators enforce the law, but also with strong community pressure both on the operators and on the government agencies107. This is not the scenario in the Niger Delta, as the communities are marginalized from the decision making process, with the corruption of the government officials, this laudable legislation which would have had a positive effect on the region is not allowed to bear the desired fruits. NDDC ACT The objective of the Act is to use the allocated funds108 to tackle ecological problems arising from the exploration of oil minerals in the Niger Delta. Section 7 (1), (b), empowers the commission to plan and to implement projects for the sustainable development of the Niger Delta in the field of transportation, health, agriculture, fisheries, urban an housing development, etc. the commission is also to liaise with oil and gas companies and advice stakeholders on the control of oil spillage, gas
105

Ibid. p.236. The Rio Declaration is however not binding, as it has not been ratified as a national law.

106

107

In Nigeria and particularly the Niger Delta, there are frequently less political and legal avenues for the participation of local communities and NGO's in the administrative, political and judicial decisionmaking process regarding environmentally sensitive facilities.
108

Funds for running NDDC comes from the federal government which contribute 15% of the 13% oil revenue allocation due to the nine oil producing states from the federation account. 3% of annual budget of oil companies operating in the region and 50% of ecological fund due to the nine oilproducing states. The Commission also receives aid from abroad - Professor H.A Saliu, S. Luqman, A.A Abdullahi, Environmental Degradation, Rising Poverty And Conflict: Towards An Explanation Of The Niger-Delta Crisis, Journal of Sustainable Development in Africa, vol.9, no.4, 2007, p.289

26

flaring and other related forms of environmental pollution. The establishment of the commission by
the government was a very laudable one though coming late, the NDDC as presently constituted is doing its best within its resource limits, however, the best of the agency seems not to be enough given the long years of neglect and marginalization of the people in the area. The developmental needs of the region are far beyond what the NDDC alone can handle. NOSDRA ACT

The Federal Executive Council of Nigeria approved a National Oil Spill Detection and Response Agency in 2006. The Ministry of Environment, which initiated the Agency also forwarded to the Federal Executive Council for approval, the reviewed draft National Oil Spill Contingency Plan (NOSCP) which the Agency would manage. The establishment of the contingency plan and the agency complied with the International Convention on Oil Pollution Preparedness, Response and Cooperation to which Nigeria is a signatory. The draft bill on the NOSDRA has been forwarded to the National Assembly for deliberation and enactment into law. Apart from intensifying efforts towards compliance, monitoring and enforcement of oil and gas regulations and standards, the ministry is also mounting pressure on the oil and gas operators for a gas flare-out. Effort is also being made to ensure the use of environmentally friendly drilling fluid and mud systems. This are all good initiatives which if implemented will benefit the Niger Delta region. It is however sad to note that the National Assembly is yet to pass this bill. AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHT Art 22 of the charter, provides that all people shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in equal enjoyment of the common heritage of mankind. Furthermore, states shall have the duty, individually or collectively, to ensure the exercise of the right to development. . The right to a general satisfactory environment, as guaranteed under Article 24 of the African Charter or the right to a healthy environment had been an illusion109. This provision imposes clear obligations upon the Nigerian government to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure ecologically sustainable development. The ratification of this charter has become a blessing, as it provides a legal protection for citizens to
109

This is because such rights were contained in chapter II, section 20 of the 1999 constitution and were not justiciable in any court of law.

27

hold the government accountable for such breaches to their right to a healthy environment and development110. Though, the Nigerian court have just enforced111 it since its domestication to national law, this is a positive sign most especially to the people of the Niger Delta, that they can seek enforcement of this category of rights from the court unlike what was obtainable before thereby emphasizing the governments overriding responsibilities to its citizens.

5. GOVERNMENT ACTION The most active action ever taken on environmental pollution happened during the Koko incident of 1988, where the government was able to make Italian government pay for cost of returning the waste back to Italy112. Although, the Government of Nigeria have made several efforts since independence to address issues relating to environmental pollution; this they have done through various enactments to regulate the activities which may cause such pollution particularly in the oil and gas sector. However, these regulations and policies are rarely enforced, in most cases, they are blatantly ignored due to fears that tough environmental regulations to curb the activities of the oil companies would cause reduction in profit and these companies may flee Nigeria.113 Due to the inefficient laws and non implementation by the agencies assigned to do so, the whole area of the Niger Delta where the oil and gas activities occur, have been left in a deplorable state with the consequent effect of abject poverty in the region, the government realizing this fact have made some efforts at development of the region and alleviating the poverty of the people. Such measures include the creation of Niger Delta Development Board, Oil Minerals Producing and Development Commission (OMPADEC), National Economic Empowerment and Development Strategy (NEEDS)114 and the Niger Delta Development Commission. Despite attempt by the
110

This was upheld in Social and Economic Rights Action Centre (SERAC) v Nigeria, communication 155 of 1996, African Commission on Human and Peoples Rights (ACHPR/CMM/A044/1). <http://www.1.umn.edu/humanrts/africa/comcases/155-96.htm> accessed on 20th January, 2012.
111

Jonah Gbemre v Shell Plc Ltd, unreported suit no FHC/B/CS/153/2005

112

In my view this is one of the periods the international principle of polluter pays was effectively and successfully used in Nigeria.
113

Joshua P. Eaton, The Nigerian Tragedy, Environmental Regulation of Transnational Corporations, and Human Rights to Healthy Environment,15 B.U.INTL L.J. 261, 297 (1997); Nigeria Oil and Gas, htt://www.nigerianoil-gas.com/upstream/index.htm
114

The NEEDS focuses on ensuring a safe and healthy environment that will secure the economic and social well being of Nigerians on a sustainable basis. The policy thrust includes taking full inventory of Nigerias natural resources, assess level of environmental damage and degradation, as well as design and implement restoration, and rejuvenation measures aimed at halting further degradation of our

28

Obasanjos administration to champion the cause of a united Nigeria, not enough has been achieved for the Niger Delta people. Shortly before his exit from office, Obasanjo unveiled what he called the New Marshall Plan for the people of the Niger Delta. The estimated cost of developing the Delta region will run in the region of N20 trillion. The marshal plan would involve massive job creation for the people of the coaster region especially in the Nigerian armed forces and the police. Road building and rural electrification were not left out, school were earmarked for upgrading to universities115 and the National Oil Spill Detection and Response Agency to eliminate water pollution. These and other promises constitute to what the government termed the 9 point development agenda of the Coaster Region. In September 2008, Late President Umaru Yar'Adua announced the formation of a Niger Delta Ministry, with the Niger Delta Development Commission to become a parastatal under the ministry116. It is quite obvious that the Nigerian government is aware of the deplorable state of environmental pollution facing the Niger Delta region. Thus measures are applied to remedy the situation. However, it is quite unfortunate that these various measures have merely been scratching the surface, as much needs to be done to transform the region to an acceptable standard that is habitable for the human populace and the plants and animals.

environment. In accordance with the NEEDS policy thrust, environmental protection and conservation of natural resources have been scaled-up since 2004. - Collins Ugochukwu, Sustainable Environmental Management in the Niger Delta Region of Nigeria, p.83.
115

Like the Petroleum Training Institute (PTI), Effurun, Warri, that was upgraded to a degree awarding institution.
116

As part of the government commitment to ensure viable development in the region, former President Umaru YarAdua-led Federal Executive Council (FEC) approving N179.13 billion for the execution of 44 projects by the NDDC in the nine states it covers. The projects cover construction of bridges, roads, drainages, hospitals and the acquisition of hospital equipment. Other priority areas are provision of potable water, educational facilities and environmental impact assessment programs. In addendum, realizing that the money set aside for them will not make the necessary impact, especially against the backdrop of the tough terrain of the region, he sent supplementary appropriation bill of N352.85 billion, a part of which would go towards implementing more projects in the Niger Delta; EastWest highway; the East-West coastal road; the East-West rail line; Inland water ways transportation; reclamation to link all oil producing communities and environmental clean-up activities. - Thovoethin Paul-Sewa , The Nigerian State and Peace Building Mechanics in the Niger Delta Region, <http://www.e-ir.info/2010/11/28/the-nigerian-state-and-peace-building-mechanics-in-the-niger-deltaregion/> accessed on the 20th January, 2012.

29

THE MDG117 GOAL OF ENVIRONMENTAL SUSTAINABILITY, AS PART OF GOVERNMENT DEVELOPMENTAL GOALS. Nigeria being one of the 191 states at the Millennium Summit that adopted the United Nations Millennium Declaration in September 2000. Nigeria has agreed to implement, by joining other countries to tackle and overcome the major development issues faced by the developing world by 2015. Since agreeing to the MDGs in 2000, the then government of Late President Musa Yaradua incorporated it into its national development agenda, known as the 7 Point Agenda and it has also been adopted by the present government.118 Since adopting the MDGs and incorporating it into the nations developmental program, efforts have been made at attaining the stated goals. The environmental sustainability goal contained in Goal Seven119 is the particular goal relevant to this discourse. In 2006 a report120 on the MDGs indicated evidence showing that there is a likelihood of achieving three of the eight goals in Nigeria; achieving universal basic education; ensuring environmental sustainability; and developing global partnership for development while the health MDGs remain daunting challenges for Nigeria. With the slow pace of developmental efforts on the part of the government in the Niger Delta region, it makes one wonder if the achievement of this goal in relation to that region is possible before 2015 deadline.
117

The Millennium Development Goals (MDGs) are the world's time-bound and quantified targets for addressing extreme poverty in its many dimensions - income, poverty, hunger, disease, lack of adequate shelter, and exclusion from work, gender equality, education, environmental sustainability and global partnership for development. <http://www.unmillenniumproject.org/goals/index.htm>accessed on 25th December, 2011
118

The 7-point Agenda is a comprehensive national framework focused on sustainable growth in the real sector of the economy. It seeks to facilitate improvement in the areas of Physical Infrastructure, Power, Energy, Transportation, Agriculture, Human Capital Development, Education and Health, Security, Law and Order, Combating Corruption and the Niger Delta that are all key enablers to bear on the achievement of the Millennium Development Goals in Nigeria. The 7 Point Agenda originates purely from within Nigeria, whilst the MDGs were the product of an international effort and are the heart of the 7 Point Agenda. The MDGs were taken, however as a key element of the 7 Point Agenda, acting as an opportune stepping stone to achieving the border and deeper National Development Agenda. <http://www.mdgs.gov.ng/frequently-asked-questions> accessed on 25th December, 2011.
119

The first target of this goal aims to integrate the principles of sustainable development into country policies and programs and reverse the loss of environmental resources. The second target for ensuring environmental sustainability is to reduce by half the proportion of people without sustainable access to safe drinking water and basic sanitation. The third target of this goal is to have achieved by 2020 a significant improvement in the lives of at least 100 million slum dwellers.
120

Millennium Development Growth Report by United Nations <www.ng.undp.org/unct.shtml> accessed on 25th December, 2011.

Development

Project.

30

6. JUDICIAL INTERVENTION Judicial intervention into cases of environmental pollution in terms of liability for non compliance with laws, liability for pollution, enforcement of environmental rights have been pragmatic in most jurisdictions of the world. This appears to be the most effective way of curbing the challenges of pollution to the environment; this is possible because each contributor in facing the law, whereby orders may be made that will necessitate such corporate persons or individuals changing its way of doing business. In most jurisdictions, the right to a clean environment has been affirmed by the national courts as a basic fundamental human right. Also such environmental provision is contained in the constitution and is usually linked to the right to life, dignity and justice121. Cases involving environmental issues in which the national courts of some countries have given protection to its citizens include; In Rural Litigation and Entitlement Kendra v. Uttar Pradesh122, where the India Supreme Court upheld the right to life in a healthy environment and issued an order to cease mining operations notwithstanding the significant investment of money and time by the company. In Subhash Kumar v. State of Bihar123, the court held that the right to life guaranteed by Art 21 includes the right to enjoyment of pollution free water and air, for full enjoyment of life. In Mathur v. Union of Indi124a, the Supreme Court of India used the right to life to emphasize the need to take drastic steps to combat air and water pollution. In Metha v. Union of India125, the Supreme Court also directed the closure or relocation of industries and ordered that the evacuated land be used for the needs of the community. In Pakistan, the Supreme Court in Shela Zia v. WAPDA, held that the fundamental right to preserve and protect the dignity of man and right to life are guaranteed under Art 9 of the constitution; includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legality and constitutionality.

121

In India, Art 48A is on protection of the environment, the Pakistan constitution in Art 9, Bangladesh constitution in Arts 31 32, South African Constitution in Sec 24.
122

AIR 1985 SC 652, in this case the petitioner alleged that unauthorized mining in the Dehra Dun area adversely affected the ecology and environment.
123

AIR 1991 SC 420. [1996] 1 SC , 119.

124

125

[1996] 4 SC 351.

31

In the US case of Kivalina v. Exxon Mobil Corp126, the complainant alleged that the defendants energy and electric producers actions released carbon dioxide, which fueled the effects that climate change was having on the village, i.e. the village which is located on the tip of a barrier reef had protection from melting ice (melting caused by the defendants producers actions) which made it vulnerable and was on the verge of falling into the ocean. It was concluded that the ancestral home of the Inupiat must be relocated and estimated to cost $95million to $400million. In Connecticut v. America Electric Power Company127, the American Court of Appeal held that the judiciary can be an appropriate forum for resolving issues surrounding the harm caused by global warming. The more recent case of 2010 oil spill popularly known as gulf oil spill128 that happened in the US is another intervention of the judiciary in bringing to book offenders of oil spill. In a case instituted by State against Deepwater Horizon, However a settlement was reached with one of the companies before the trial. According to the terms of the settlement, MOEX will pay $70 million in civil penalties to resolve alleged violations of the Clean Water Act resulting from the spill and agreed to spend $20 million to facilitate land acquisition projects in several Gulf states that will preserve and protect in perpetuity habitat and resources important to water quality and other environmental features of the Gulf of Mexico region. This settlement does not affect the governments claims against any other defendant in the Deepwater Horizon lawsuit that was filed on Dec. 15, 2010. The Clean Water Act provides for civil penalties for such discharges. This is the largest civil penalty ever recovered under the Clean Water Act. NIGERIAN JUDICIAL INTERVENTION

126

663 F, Supp. 2d 863 Dist. Court, ND California [2009]. O5-5104-CV.

127

128

The April 2010 Deepwater Horizon blast killed 11 workers and spilled four million barrels of oil into the Gulf of Mexico. In December 2010, the US Department of Justice sued BP and eight other companies for billions of dollars in damages from the spill. The lawsuit asked that the companies be held "liable without limitation. Under the terms of the settlement reached with MOEX, who was the smallest shareholder in the project and a passive partner that had no role in the drilling operation that was underway when the Macondo well blew out, MOEX would pay $70 million in penalties, and another $20 million that would go to facilitate land acquisition projects in several gulf states that will preserve and protect in perpetuity habitat and resources important to the regions water and environment. The trial of the first phase of the case is set to begin in federal district court in New Orleans on Feb. 27, 2012. By way of comparison, damages claims in the Exxon Valdez oil spill in 1989 (which was the biggest in US history until the Gulf of Mexico) spent nearly 20 years in the US courts.<http://www.latimes.com/news/nation/nationnow/la-na-nn-gulf-oil-spill-20120217,0,5123388.story>; <www.justice.gov/enrd/Consent_Decrees.html> accessed on 21st February, 2012.

32

It was not until recently that the Nigerian courts started awarding damages and declaring unlawful the activities of the companies operating in the Niger Delta and also holding the government on its responsibilities to its citizens. This was necessitated by recent enhancement of environmental cause129; however, before this shift in position, the courts have often based determination of environmental issues on the common law principles of negligence130 and nuisance131. Examples of such cases include; Shell BP Ltd v. Cole & ors132, Umudge v. Shell BP Petroleum133, Amos & ors v. Shell BP Petroleum Ltd & Anor134, Godspower Nweke v. Nigerian Agip Oil Company Ltd135. Other oil related cases between 1990 to 2004, where the attitude of the courts was seen to refrain from making remediation of damages done to the physical environment, the land and water resources like the cases of Shell v. Tiebo VII136, Seismograph Services v. Mark137, Ogiale v. Shell138, Shell v. Ambali139, Lawani v. The West African Portland Cement Co. Ltd140, these cases alleged pollution from oil exploration, loss of income, loss of property, contamination of drinking water leading to water borne diseases and pollution of land. It must be stated that judicial attitude in all these cases appeared to be weighted in favor of the oil companies. It was virtually unthinkable for any court to issue an injunction restraining an oil company. Damages which were therefore the most likely remedies which the court could give were often the only reason that the plaintiffs went to court in
129

Like the issues of climate change, gas faring, commitments under international environmental treaties, pressure from international and local NGOs, they also took a cue from other jurisdictions by expansively interpreting some substantive rights in the constitution to include the right to a healthy environment e.g. of such rights are the right to life, dignity, private and family life and justice, they also shifted from awarding monetary compensation to the attachment of great importance to the rights of plaintiffs in environmental cases.
130

As enunciated in Donogue v Stevenson [19320 AC 562 and Ryland and Fletcher [19680] LR 3.

131

The main issue being whether it is a function of public nuisance or private nuisance and that if it is a public nuisance it is only the Attorney-General that can institute the action.
132

[1975] M.S.C.C vol.11, p.96. [1975] 9 11 SC 155. Suit no. PHC/45/1972, delivered on August 12, 1974.

133

134

135

[1976] 10 S.C 101. [1996] 4 NWLR pt. 445, p.657. [1993] 7 NWLR pt. 304, p.203. [1997] 1 NWLR pt.480, p.148. [1999] 3 NWLR pt.593, p.1. [1972] 3 UILR pt. IV, p. 459.

136

137

138

139

140

33

the first place. Unfortunately, the damages awarded in the past have often been paltry and not worth all the trouble141. It was not until the landmark case of Shell v. Farah142, which was the first Nigerian case the court awarded compensation and remediation of a damaged land as claimed by the plaintiff. The defendants were made liable to pay compensation solely under section 36 of the Petroleum Act. In another landmark case of Jonah Gbemre v. Shell Petroleum Development Company Ltd & 2 Ors.143, the court acknowledged that the practice of gas flaring is a gross violation of the constitutionally guaranteed rights of life and dignity, and the court ordered Shell to stop gas flaring in the affected Iwherekan community immediately. The court went further to declare the Nigerian Gas flaring law144 to be unconstitutional, null and void. It is pertinent to note that the issue of neglect and devastating environmental damage done to the Niger Delta region has now gained international prominence where Shell Company (being the largest company carrying out exploration activities in the region) and the Nigerian government have been held liable and condemned for their acts of pollution in the region. This was declared in Social and Economic Rights Action Centre (SERAC) v. Nigeria145, the Nigerian government was found to have violated the right to health and the right to clean environment as recognized under Articles 16 and 24 of the African Charter, in that it failed to take reasonable measures to prevent pollution and ecological degradation and promote conservation and secure an ecologically sustainable development and use of natural resources. In Wiwa & ors v. Shell Royal Dutch Company,146 on human and environmental abuses of the Ogoni people of Nigeria. The action was instituted under Alien Torts of the US. The defendants were charged with complicity in human
141

The courts have even awarded an amount as low as N200 (approximately 15 sterling). Adewale O, Judicial Attitude to environmental Hazards in the Nigerian Oil Industry, The petroleum Industry and the Nigerian Environment, [Proceedings of the 1985 seminar, DPR, Environmental Planning and Protection Division] pp. 44 46.
142

[1995] 3 NWLR pt.382, p.148. Unreported suit no FHC/CS/B/153/2005, delivered on 14th November 2005.

143

144

i.e. section 3 (2), (a-b) of the Associated Gas Re-Injection Act is inconsistent with the applicants rights enshrined in sections 33(1), 34(1) and articles 4, 16 and 24 of the African Charter, the Acts of the defendant were also held to violate the EIA Act and were therefore unconstitutional, null and void by virtue of section 1(3) of the 1999 constitution. The court also ordered the Attorney General of the Federation to meet with the Federal Executive Council and bring the law in conformity with the present day practice, rules and regulations governing oil and gas activities.
145

Communication 155 (ACHPR/CMM/A044/1).

of

1996,

African

Commission

on

Human

and

Peoples

Rights

34

rights and environmental abuses, the parties eventually settled in the case for $15.5million. The hallmark of this case is that the court decided that the plaintiffs can institute the action in US court for the acts committed outside a US jurisdiction but involving a US citizen or corporation. Similarly in May 2008, four Nigerian Fishermen and farmers from the village of Oruma, in the Niger Delta region, together with Friends of the Earth-Netherlands and Nigeria, filed a law suit against Shell in the district court of The Hague, Netherlands, where the company has its international headquarters. The plaintiffs alleged that Shell was negligent in its clean up of oil spills in the Niger Delta and that their health was adversely affected by the oil spills. They further claimed that Shell failed to adhere to international standards of good field practice in its Nigeria oil operations. They sought damages for loss of fishponds and livelihood. Shells challenge to the jurisdiction of the court was overruled and the case is still pending before the Dutch court147.

7. LESSONS OF THE NIGER DELTA The greatest lesson to be learnt from the Niger Delta is that in the pursuit of economic development through harnessing of natural resources, the environment must be given paramount attention. The "Polluter pays Principle" is an accepted principle in international law and it implies the general consensus that it is for the polluter to meet the cost of pollution control, prevention measures and compensation for damage done. This principle is enshrined in domestic legislation in section 21 of

146

The plaintiffs alleged that the Nigerian Military government and security forces committed human rights violation and that the Shell Company was complicit in the commission of the abuses, which was the illegal detention and execution of Ken Saro Wiwa and other members of the movement for the survival of the Ogoni people (MOSOP), who were campaigning against the environmental damage caused by oil extraction in the Ogoni region of Nigeria.
147

Shell Lawsuit (Re Oil Pollution in Nigeria) <http://www.Business_humanrights.Org/categories/lawsuits/lawsuitsregulatoryaction/lawsuitselectedca ses/reoilpollutioninNigeria> accessed on 23rd February, 2012.

35

the FEPA Act 1988148, NESREA Act149, The Akwa Ibom EPWMA Act150, EGASPIN151, and Harmful Waste Act152. This principle must be brought to fore in environmental issues to hold any corporation or individual liable for acts of pollution. This has been used all over the world in ensuring clean up exercise and conserving the ecosystem from degradation and pollution. Also, the issue of sustainable development in Nigeria which is still a farfetched goal153, to which Nigeria will start reaping the dividends only when needed programs and strategies are fully implemented. The Nigerian Government has to take governance seriously and stop robbing Peter to pay Paul. In as much as the economic benefits to be derived from oil and gas exploration is necessary, it is not as important to the right to life, dignity, clean environment, good health and livelihood of the people. This is because if all these rights of the people are jeopardized of what benefit will be the economic benefits derived, be to the people. Development must be done fairly in the whole of the

148

which provides that: "Except where an owner or operator can prove that a discharge was caused solely by natural disaster or an act of war or by sabotage, such owner or operator of any vessel or onshore or offshore facility from which the hazardous substance is discharged shall be liable for - the cost of removal thereof; and costs of third parties in the form of reparation, restoration, restitution or compensation as may be determined by the Agency from time to time".
149

provides that any person who discharges hazardous substances into the air, upon the land or waters of Nigeria shall upon conviction be subject to a fine not exceeding N1,000,000.00 (One Million Naira) or imprisonment for a term not exceeding 5 years. If this offence is committed by a company, the company shall on conviction be liable to a fine.
150

provides that any person who allows toxic waste to be dumped in any land or water commits an offence and shall be liable on conviction to a maximum term of five years imprisonment.
151

Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (EGASPIN) 2002, published by the Department of Petroleum Resources (DPR).provides that a licensee/lessee responsible for the generation of the waste shall be liable for any contamination associated with such waste and shall bear all costs associated with its remediation and monitoring. The Licensee/lessee shall pay adequate compensation to the land owners and community which has been affected by its operations.
152

where any damage (e.g. contamination of land or groundwater) is due to harmful waste, any person who deposited, dumped or imported the harmful waste or caused the harmful waste to be so deposited, dumped or imported shall be liable for the damage.
153

Although most of the foundations have been laid by government; for example, the formation of local Agenda 21 committees at the federal and state levels, inauguration of Environmental Action Plan committees at all levels of government, being a signatory to the Kyoto Protocol and other international Treaties involved in environmental management, upgrading an environmental agency (Federal Environmental Protection Agency FEPA) into a full fledge ministry (Federal Ministry of Environment FMENV), introduction of poverty eradication programs, and the commitment of the government to investing in environmental management strategies.

36

country and not marginalizing any region, also relationship with oil companies should not deter the government from enforcing compliance with regulations154. Sustainable development dwells on the capacity to improve the quality of human life while living within the carrying capacity of the supporting ecosystem. Development is real only if it makes our lives better in all ramifications; and sustainable development becomes a balancing act and sometimes compromise between efficiency (economic sustainability), equity (social sustainability) and conservation (environmental sustainability)155. Also section 17 (2), (d) of the 1999 constitution provides that; in furtherance of social order, exploitation of human or natural resources in any form whatsoever for reasons, other than the good of the community, shall be prevented. It is therefore submitted that there is an overriding responsibility by the Nigerian government to its citizens, to ensure that development is done with environmental sustainability and the rights of the citizens are not jeopardized.

8. CHALLENGES In ensuring protection of the environment and sustainable development in the Niger Delta Region and Nigeria as a whole, it involves cooperation from the government, corporations, citizens, NGOs and most especially the media. However, there some challenges being faced in achieving this feat, which is inherent from the procedures and mechanisms in the current way of doing things. These will be explained under three headings. INADEQUATE LEGAL AND REGULATORY REGIME
154

It is pertinent to note that the so called oil companies do not operate below standard in their various countries of origin and in other foreign countries. They are able to do this because the Nigerian government is very corrupt and turns a blind eye to the in adequacies. This even happen when their activities were declared illegal and unconstitutional in Jonah Gbemre v. Shell, and the company went on with the lethal practice of burning gas in defiance of the order of the court and this resulted in contempt proceedings against shell. The order was eventually appealed but the end result of the trial court was that the order was not complied with and the trial judge was removed from the case and transferred to another division of the court in the far North. This would not have happen in developed countries with consequences not only for the company but also government officials. Ariyoosu D.A, Adekilekun M.T, A Conceptual Framework for Climate Change and the Right to Health in Nigeria, Law and Climate Change in Nigeria, Faculty of aw, University of Ilorin, 2011, p.361.
155

Olujimi JAB, (2010). The Roles of the Stakeholders in the Usage and Management of the Environment. A paper delivered at the Workshop on the Challenges of Environment and the Imperative of Urban and Rural Development. Held at the Federal University of Technology, Akure between 27th and 29th April, 2010.

37

It must be stated that there are quite a number of laws enacted to regulate, control, prevent and punish activities causing or cause of pollution. However a noticeable inherent in all these laws is that they are outdated, not adequate in terms of the penalties they prescribe or they dont even cover some issues of environmental protection. There are so many international treaties on environmental law to which Nigeria is a signatory to but has not been domesticated into our law as specified in Section 12 of the 1999 Constitution, (like the Rio declaration). The section is not being utilized to its maximum as Nigerians stand a lot to benefit from these treaties when ratified156. Chapter II of the 1999 constitution which provides for the Fundamental Objectives and Directive Principles of State Policy is a non justiciable chapter by virtue of Section 6 (6), (c) of the constitution. This is a very a negative effect to the beautiful and lofty provisions which the citizens would have been able to hold the government accountable. NON ENFORCEMENT OF LAWS The enforcement mechanisms for these laws which are usually placed in Agencies or the Ministry of Environment, have not been effective because they are usually faced with so many constraints like, funding, technical manpower in adequate data, bureaucracy and corruption. There are times when the functions of these agencies even overlap thereby creating chaos157. Also the lukewarm attitude of the government to environmental issues does not help in the enforcement of these laws. This is because of the economic benefit accruing to the government and they neglect the other reality being created by lack of enforcement on the environment and the people. POVERTY AND RESTIVENESS

156

Such benefits include how the provisions of the African Charter was enforced since the Constitution did not provide for environmental right.
157

e.g. Federal Ministry of Environment, Department of Petroleum Resources of Federal Ministry of Petroleum Resources and States Ministry of Environment, Federal Ministry of Environment and Nigerian Maritime Organization etc. These overlap of functions cause conflicts and weaken enforcement and compliance and lead to lapses in environmental requirement implementation and thus continuous degradation of the environment.

38

Due to the level of pollution and degradation on the environment in that region, which has destroyed the source of livelihood of the people (farming and fishing), water for drinking, road network, and access to health and educational facilities, the neglect from the government in terms of development have reduced their quality of life. This also makes the people engage in activities that add to the environmental pollution in the region (like sabotage of pipelines and selling the fuel at black market, engaging in farming methods that affect the ecosystem). Also, the practice of compensation settlement to the people instead of cleanup efforts for spills, stems from the growing poverty and greed among the people. The restiveness in the region is being used as a means of expressing grievance for the years of neglect and continuous degradation of the environment that has brought about poverty and unemployment (the restiveness is caused mostly by the youths by kidnapping and destroying oil facilities); this has made the region very unsecure for developmental projects and there is a fear to go to the region because of hostage taking. (Government officials hide under this not to go inspect the activities of companies taking place there).

9. CONCLUSION AND RECOMENDATION From the beginning of the paper, it can be deduced that a delicate balance existed between the humans and the environment in the Niger Delta region, the exploitation of natural resources did not go beyond the search for medicinal herbs, fuel, game, fish and construction materials. This was sustainable because the available resources outmatched the needs of the population. Today, the Niger Delta environment has changed and continues to change rapidly. The human population has grown at a high rate. Industrialization, urban development, and oil and gas exploration and exploitation have infringed on the people and their environment, leading to the opening up of the previously pristine ecosystems. This has resulted in various environmental issues in the region. While natural hazards may be responsible for some of the environmental impacts, oil exploration activities have no doubt aggravated the situation. There is a strong feeling in the region that the degree and rate of degradation are pushing the delta towards ecological disaster. The intense feeling among people is that they ought to do far better, given the enormous resources flowing from their region. Quite a number of the population of the Niger Delta people are well educated and know their rights, and wants the region to become environmentally sustainable. The
39

government on its part has made laws concerning some environmental issues, majority of which as discussed have been inadequate. To succinctly put, without appropriate environmental management initiatives, the people suffer from poverty, insufficient livelihoods, poor health and vulnerability and a deteriorating ecosystem. It is with this in mind that appropriate environmental practice needs to be put in place to ensure sustainable development and for the nation to learn from the Niger Delta that the use of natural resources for economic development without a comprehensive environmental policy put in place for sustainable development will cause grave negative impact not only on the environment but also on the lives of the people. To this end, these recommendations are proposed to There is the need for a comprehensive national law on environment which is all encompassing or in the alternative the various laws dealing with different issues must be updated to cater for current and future issues. The development of an Environmental Action Plan for the Niger Delta Region, this plan must addresses the priority environmental issues at hand, that makes the most effective use of the limited resources in the Niger Delta for the improvement of environmental conditions in the region. Such as the Integrated Coastal Zone Management (ICZM) model, a
concept developed in 1992 during the Earth Summit at Rio de Janeiro, which has been used effectively in some developed countries.

Poverty eradication programs developed must be reviewed to address most especially primary
health care that is accessible to the people, creating employment opportunities for the people whose source of livelihood have been destroyed to ensure the economic sustainability of the region. Also, government should make use of the necessary government Ministries and Agencies like the NDDC and provide suitable housing facilities, healthcare, sanitation, transportation and portable water.

The regulatory and enforcement agencies need to be updated and strengthened to meet the challenges of current issues. There may be a need for a re-orientation and overhaul of parastatals to make them more efficient. International treaties which are beneficial to environmental impact in the country, which have not been ratified need to be domesticated.
40

 Chapter II of the constitution needs to be reviewed and amended to be justiciable as it contains other rights not provided in chapter IV as fundamental rights. To ensure environmental sustainability of the Niger Delta region, and Nigeria as whole,
government should as a matter of urgency increase its budgetary allocations to the environmental sector of the economy. The funds should be invested in capacity building, trainings and acquisition of laboratory equipments for the Environmental Ministries and Agencies in the country.

The government should also ensure strict compliance to the environmental laws of Nigeria by
the oil companies and allied companies operating in the country.

Stable leadership (that is well informed on environmental issues) of an implementing environmental organization is a compulsory requirement for an effective compliance and enforcement program.
Oil companies operating in the Niger Delta, should practice standard of compliance prescribed by their industries internationally.

There is the need to incorporate Environmental Management Systems (EMS) in Oil Industry Operations in the Niger Delta Region. Oil companies should sponsor research in technologies that will better their performance in
Nigerian universities and other institutes of learning and not just in foreign countries. Awareness must be made in the media on environmental issues among the citizenry, so that they stop contributing to pollution and make report when it happens.

41