Environmental legal implications of oil and gas exploration in the Niger Delta of Nigeria
TABLE OF CONTENTS ABSTRACT ii ACKNOWLEDGEMENT iv LIST OF TABLES ix INTRODUCTION 11 1. INTRODUCTION TO NIGERIA AND THE NIGER DELTA 21 Brief Political History of Nigeria 21 The Core Niger Delta and the Tribal Clans 39 Defining the Niger Delta 48 History of Exploitation of the Niger Delta 58 Implications for the Niger Delta 62 2. MODERN HISTORY OF EXPLORATION, STATE OWNERSHIP AND MULTILATERAL CORPORATIONS IN THE NIGER DELTA 67 History of Oil Exploration, Development and State Ownership 67 Multinational Corporations and the Legal Structure of Oil Exploration and Development 76 Benefit Sharing and Revenue Allocation in the Niger Delta 82 vii
viii 3. ENVIRONMENTAL AND OTHER IMPACTS FROM OIL AND GAS DEVELOPMENT 86 Acquisition of Indigenous Lands 87 Exploration 87 Health Impacts 91 Social, Cultural and Economic Impacts of Oil Activities 94 Conflict and Grass Roots Advocacy 95 4. INTRODUCTION TO ENVIRONMENTAL LAW IN NIGERIA 103 Sources of Environmental Law in Nigeria 103 Nigerian Customary Environmental Law 104 Environmental Legislation 118 Nigerian Judicial Decisions on Environment 120 The Received English Environmental Law 122 International Treaties, Conventions and Protocols on Environmental Law 125 Writings of Environmental Jurists and Publicists 127 5. FOCUS ON ENVIRONMENTAL IMPACT ASSESSMENT (EIA): COMPARING NIGERIA TO THE UNITED STATES 129 The EIA and its Relationship to Sustainable Development 131 EIA Document Preparation 135 EIA Exclusions and Exemptions 139 Extent of Public Participation 146
ix Socio-Economic Impacts and the EIA Process 153 Cumulative Impacts, Ecosystem Analysis and Biodiversity 157 Climate Change, Terrorism, Sabotage and EIA 161 EIA Imperatives Critical to the Assessment of the Oil and Gas Industry 173 A Comment on EIA Reform and Recent Trends 175 6. ENVIRONMENTAL ENFORCEMENT ISSUES IN NIGERIA 182 Factors that Encourage Compliance 182 Factors that Discourage Compliance 183 Enforcement by the Courts 185 APPENDICES 204 BIBLIOGRAPHY 244
LIST OF TABLES 1. Table Showing the Names of Clans and Key Towns in the Study Area. 2. Calendar of events in the core Niger Delta (Ijaw Country). 3. List of Traditional Officials Interviewed 4. Profile of Interviewees 5. Sample SJ.D. Questionnaire 6. Table Showing Selected Oil and Gas spillages Between 1989 - 2004 and the extent of inaccurate documentation in Nigeria Appendix 1 Appendix 2 Appendix 3 Appendix 4 Appendix 5 Appendix 6 7. Table of Recommended Oil Pollution Compensation List Appendix 7 x
INTRODUCTION A. Overview of Thesis There is currently a dearth of scholarly work on the plight of the indigenous minority people of the Niger Delta of Nigeria. Accordingly, the precise environmental effects of the activities of multinational oil and gas corporations1 in business collaboration with the federal government of Nigeria are largely undocumented. In recent years, there have been robust calls for change in the government's official policy of absolute state control of oil and gas resources.3 Several reasons are espoused in support of the government's position. The international businesses involved in the extraction of fossil fuel in the study area are multinational corporations based in the developed North (America, Europe, and recently Asia). They invest and deploy foreign capital, technology, and managerial skills through a network of subsidiaries. Necessarily, their organizational structure extends beyond the boundaries of their home country. See generally RICHARD FALK, PREDATORY GLOBALIZATION: A CRITIQUE (Polity 1999); E.M. GRAHAM, GLOBAL CORPORATIONS AND NATIONAL GOVERNMENTS (1996); THE EMERGENCE OF PRIVATE AUTHORITY IN GLOBAL GOVERNANCE (Rodney Bruce Hall & Thomas J. Biersteker eds., 2002). 2 There has been a change in the attitude of elites from the Niger Delta region towards multinational oil and gas corporations, as a response to the perceived involvement of these corporations in the deteriorating human rights situation and under-development of the region. These, coupled with the feeling of political marginalization, the desire for positive economic change, and rising expectations of the indigenous people, have led to the mobilization of many groups in the region. This includes armed local militia, youths, students, labor, and peasant men and women. Nevertheless, proponents of multinational corporations argue that corporate investment is a mechanism for increasing economic efficiency and stimulating growth. They argue that by transferring capital, technology, and know-how, and by mobilizing idle domestic resources, multinational corporations increase world efficiency, foster growth, and thereby improve welfare. 3 The State has absolute ownership of all oil and gas resources in Nigeria, under the territorial waters of Nigeria, or forming part of the continental shelf. See The Land Use Act (2004) Cap. L5 §§ 1-5 (Nigeria); The Petroleum Act (2004) Cap. P23 § 7 (Nigeria); The Offshore Oil Revenue Act (2004) Cap. T7 §§ 1-5 (Nigeria). 11
12 First, those supporters argue that "when ownership of land harboring oil and gas was privately owned in the Niger Delta of Nigeria, in strict accordance with customary law, the result was that land had to be acquired before oil and gas exploration could be undertaken. The process was not only cumbersome, the cost was exorbitant."4 Second, supporters advance that "the absolute state ownership or the socialist approach, could lead to the production of specialized Nigerian work force in the oil and gas industry within the shortest possible time."5 Some others in support of the government's "socialist approach" argue that "it was for the purpose not only of authorizing the multinational oil and gas corporations to conduct exploration and production work, but also of controlling their activities. Hence, the government asserted its sovereign rights over Nigeria's petroleum resources."6 On the other hand, those opposed to the government's absolute ownership of oil and gas resources are quick to point out that: After forty-eight excruciating years of absolute state ownership of oil and gas resources, none of the above prognoses advanced by the government and its cohorts has come true, instead there are increased lapses in the efficient management of revenues from oil and gas—including controlling the activities of the multinational corporations. The result is ethnic conflict, failed governance, and poor environmental and social policies, which have left indigenous people of the Niger Delta—on whose J.O. Fabumni, The Legal Framework of National Control of Mineral Oil Reserves in Nigeria 24 (May 29-June 2, 1984) (presented at Nigerian National Workshop on Petroleum, held at the University of Lagos, Nigeria). 5 Olise M.O., Address to the Nigerian National Workshop on Petroleum Law, The Role of Nigerian National Petroleum Corporation ("NNPC") in the Nigerian Oil Industry, (May 29-June 2, 1984) (presented at Nigerian National Workshop on Petroleum, held at the University of Lagos, Nigeria).
13 land oil and gas resources are extracted—impoverished with attendant environmental degradation.7 This dissertation exposes the inadequacy of the existing legal and institutional framework of absolute state ownership of oil and gas resources according to the socialist approach,8 and demonstrates that this approach has failed Nigeria. The direct and indirect effects of these composite national failures account for the excruciating fact that a majority of the population live below one United States dollar a day,9 and the environment has been devastated almost beyond mitigation, promoting a crippling international indebtedness, an unfavorable balance of payment, brain drain, and increased national insecurity. These and other critical concerns explain the need to urgently re-think the fundamental structure and organization of oil and gas ownership and control in Nigeria. At the moment, the official government policy excludes traditional environmental management practices that exist in the Niger Delta people's customary system. It also excludes contemporary sustainable development trends in natural resources conservation principles. 7 Orubebe Bibobra Bello, Symposium On Oil and Gas in the Niger Delta: Preparing Towards Post Oil and Gas Era; A new Vision Towards Creating Mutual Relationship Between the Oil Companies and the Communities, (Aug. 27-29, 2001). 8 Orubebe Bibobra Bello, Comparative Analysis ofEIA in Nigeria and the United States of America Oil Gas Sector 4 (Apr. 21, 2001) (unpublished LLM research paper, American University, Washington College of Law). 9 UNITED NATIONS DEVELOPMENT PROGRAMME ("UNDP"), HUMAN DEVELOPMENT REPORT ON NIGERIA (2006), available at http://www.ng.undp.org/ (last visited Feb. 22, 2009). CENTRAL BANK OF NIGERIA, ASSESSMENT OF NIGERIA'S FOREIGN DEBT 41 (2005).
14 Thus, strategies for challenging the current status quo must be developed to overcome these problems and there should be multiple remedial strategies aimed at expanding and improving existing municipal, state, national and international environmental law and policy regimes. This dissertation's ultimate objective is to identify and analyze the problem and develop solutions for the full realization of environmentally sustainable oil and gas production in the region. These solutions will be based on a coordinated, functional, and participatory Environmental Impact Assessment ("EIA") process, which could protect the region's environment, including the indigenous minority population and their unique way of life. The thesis will, in addition to the above, articulate and develop legal means through which international environmental law will be self-executing and traditional, indigenous environmental management practices will become part of applicable and enforceable national environmental law. There will be subsidiary theories developed to address critical areas such as environmental justice, the role of Non- Governmental Organizations ("NGOs"), awareness creation, voice, authority and stakeholders' participation in relation to sustainable oil and gas operations. All of these subsidiary theories will be predicated on, and fully integrated into, the EIA process. In addition to the above, other mechanisms and remedies, such as insurance of special risk covering the environmental effects of oil and gas exploration in the Niger Delta region, will be explored. The dissertation is divided into three parts, consisting of seven chapters. It includes a dedication, an abstract, an acknowledgement, and several illustrative maps
15 with detailed footnotes. Part one consists of an overview with main arguments and chapter summaries. It also comprises chapter one—Introduction to Nigeria and the Niger Delta; chapter two—Modern History of Oil Exploration, State Ownership and Multinational Corporations in the Niger Delta; and chapter three—Environmental and Other Impacts from Oil and Gas Development. Part two consists of chapter four— Introduction to Environmental Law in Nigeria; chapter five—Focus on EI A: Comparing Nigeria to the United States; chapter six—Environmental Enforcement Issues in Nigeria. Part three comprise chapter seven—Critical Pragmatic Approach to Environmental Law Reform. This part essentially summarizes the research and uses primary research findings to develop strategies towards a coordinated framework for improved environmental governance in the Niger Delta. It also explores the promise and the challenges of possible reform strategies in an African Federal Constitution. In addition to the above, the dissertation will also address pertinent topics such as the roles of legal education curriculum reform, increased access to justice, and adoption of customary environmental law through constitutional amendment. The high point of the research is the proposition of a coordinated environmental decision-making guideline aimed at strengthening the current EIA process. This is accompanied by a detailed environmental pollution compensation guide for Nigeria, along with a recommendation and conclusion.
16 B. Research Methodology The legal and policy analysis of this dissertation is based on extensive investigation of the historical, cultural, political, and economic antecedents of the environmental dilemma that reigns in the present-day Niger Delta area. My research and analysis required inquiry into customary practices of land ownership and resource management, the government's policy of absolute state ownership of oil mineral resources, relevant municipal, national and international laws, archival sources, and primary data gathered through personal observation and interviews. The sources of my archival data were: 1) historical records at the British Colonial Office Archives in London; 2) the Nigerian National Archives at Ibadan; 3) decided cases of Her Majesty's colonial officers—District Officers (DOs); 4) cases of the customary or native authority courts; 5) cases of the high courts of justice; and 6) cases of the federal court of appeal and the supreme court of Nigeria. Interviews and Data Collection I conducted interviews with Nigerian government officials engaged in the oil and gas industry, key personnel with multinational oil and gas corporations operating in the Niger Delta of Nigeria, and indigenous ethnic minority leaders and peasants (fishermen, farmers, raffia palm wine tapers, natural fruit collectors and the like). This part of the research was conducted among the members of the Oporomor, Tuomo, Seimbiri, Kabo, Oyiakiri, Tarakiri, Idwini, Ogbein, and Mein clans. This research afforded me a critical sense of their perceptions of the effects of oil and gas exploration
17 and exploitation on their lives. I was able to observe post-impact joint inspections of eighteen oil spillages and twelve oil spill compensation processes. I was indeed able to observe that most oil spillage victims complained of inadequacy of the compensation for such damage to their property and to the environmental resources. Yet, they could not reject this compensation because they could not afford the prohibitive cost and other difficulties associated with environmental litigation in Nigeria, particularly the substantive and procedural rule or requirement that .01% of the total claim be paid as official filling fee in advance of trial.11 In all the clans and kingdoms throughout the study area, I combined semi-structured interviews and follow-up data collection and analysis. Critical issues such as persistent environmental problems were raised with local or divisional personnel of the government departments or agencies and multinational oil and gas corporation officials. These persons most often either ignored me or simply said "they were under instructions from their head offices not to grant me an audience." Notwithstanding this hostile and often embarrassing treatment, I proceeded, dividing my field research into nine clan locations. In each clan under observation, five oil and gas facility host towns, villages, or hamlets were surveyed, with the traditional clan administrative headquarters serving as the main location. In determining the sample selection of clans and villages for the subsidiary locations, I relied on the local traditional orators and historians to detail to me and my 11 Federal High Court of Rules (2001) 053 Rl Sched. 2 (Nigeria).
18 research assistants "pulou dese de ama bomo-egedebomo" (previous oil spill impacted villages and facilities). Out of these, I selected samples of two-thirds of the families, villages, and clans, using their locally acquired knowledge of the population distribution and traditional settlement patterns all year round as the criteria. The total number of survey interviewees was 796. Appendix 4 gives a brief profile of the interviewees by clan. I have altered the names of some interviewees in my discussion of their views and their exceptionally heart-felt experiences, in keeping with the promise of confidentiality that I made to them.12 Reasons for Choice of Research Area I chose the Niger Delta for both intellectual and practical reasons. It is my home and this eliminated or at least shortened considerably the time needed for cultural adjustment. I am also fluent in the Ezon (Ijaw) language, and therefore I did not need an interpreter. Intellectually, the Niger Delta question presents a variation on the global "resource curse" thesis rarely understood by scholars outside the region, due to the In the first week of our visits to most of these locations a common question that my research assistants and I were asked was "Are they coming to raid us again?" To gain the confidence of all groups of indigenous people, I made a promise of confidentiality to the local leaders. Indeed, their fears appeared to have some foundation, as we noted the presence of all types of special military task forces of the Nigerian Government in all the clans visited. The few military personnel who accepted interviews in secrecy insisted that they were in the Niger Delta region for special military operations aimed at the suppression of environmental protest and protection of multinational oil and gas corporation facilities and their workers from kidnapping. 13 See RICHARD M. AUTY, SUSTAINING DEVELOPMENT IN MINERAL ECONOMIES: THE RESOURCE CURSE THESIS (Routledge 1993) (discussing the paradox wherein some countries with a wealth of natural resources have lower rates of economic growth than countries less well endowed with such resources).
19 peculiar ethnic dynamics of the area. Further, Nigeria is Africa's largest producer of oil and gas, a fact that makes its steady supply from the Niger Delta critical to global energy market stability. The nexus between Nigeria's rich oil and gas resources and the social, political and environmental problems in the Niger Delta make for a dilemma of global significance. And central to any solution of the problems posed is the answer to some fundamental questions regarding environmental protection in that area: How do we best protect the overall human environment and at the same time meet the ever- increasing demand for oil and gas? What role could a rigorous EIA process, fully supported by both law and political will, play in the sustainable development of resource-rich developing countries like Nigeria? Can these countries pioneer or fund global renewable and alternative energy efforts? I have no doubt that the international environmental and legal implications of oil and gas exploration in the Niger Delta of Nigeria is likely to dominate global climate change and sustainable development efforts for a long time. Challenges Encountered The challenges to the implementation of the research and analysis leading to this dissertation flow from the very problems that are its subject. The area is backward due to neglect by successive regimes of Nigerian governments. As a result, for example, there is no good network of roads linking the clans in the study area and thus transport for the purposes of interviews and field investigations was particularly difficult. Electricity supply is greatly hampered because the Niger Delta area has not been effectively linked
20 to the national generation and supply network. Communication within and with the rest of Nigeria is for now impossible. In fact, the poor state of basic infrastructure made for a tedious research exercise. It meant that to travel to the rural settlements, I had to go around by canoes, because those areas are not accessible by road. Further, human and social problems, such as armed ethnic and communal conflict, environmentally-induced endemic diseases, poverty, and grave human rights violations, reign supreme. Additionally, strangers who come around in the Niger Delta asking questions are regarded with a degree of suspicion, because they are presumed to be governmental or multinational oil and gas corporation agents who are gathering information for the next attack. Another challenge occurred in my efforts to gain access to data from government offices in the hinterlands. Officials were frequently not willing to release information concerning the research topic. In the face of all these challenges, the fact that I had been a champion of human and environmental rights protection in the Niger Delta as a lawyer, and the fact that the detailed information being gathered was for a study of their area's problems, worked in my favor. Indeed, the nature of the challenges encountered in performing this research both confirmed the reality and the gravity of the problems addressed in this dissertation and explained the reason for the dearth of balanced legal and scholarly works on the core Niger Delta region of Nigeria. Thus, the research process itself has underscored the importance of substantial professional inquiry and analysis of the type attempted in this dissertation.
CHAPTER ONE INTRODUCTION TO NIGERIA AND THE NIGER DELTA A. Brief Political History of Nigeria A true political history of Nigeria must entail not only a treatment of the obvious topics of pre-colonial society, colonialism, independence, and development, but also the critical underlying subjects such as Nigeria's geographic and demographic characteristics. The following discussion introduces all of these relevant features and interweaves them so as to present a coherent picture of the Niger Delta situation. Relevant Geographical and Demographic Features Nigeria comprises an area of approximately 923,853 square kilometers.14 It is bounded to the north by the African nations Niger and Chad, to the west by the Benin Republic, to the east by Cameroon, and to the south by Sao Tome and Principe and Equatorial Guinea. In 2005, Nigeria had an estimated population of 138 million people.15 There are about three hundred ethnic groups16 (tribes) of which the Hausa- 14 REUBEN K. UDO, GEOGRAPHICAL REGIONS OF NIGERIA 1-2 (Heineman Educational Books Ltd. 1970). Note that in the 1970s, the official measurement used in Nigeria was 356,700 square miles. This figure was converted to kilometers by the researcher for easy reference and comprehension. 15 NIGERIA NATIONAL POPULATION COMMISSION, 1991 CENSUS REPORT 349(1998). 16 Id at 23. 21
22 Fulani, Yoruba, and Ibo are majority groups. The Ijaw (Izon), Ogoni, Isoko, Itsekiri, and Urhobo are a few of the minority ethnic groups.17 Geographically, Nigeria is situated between 4° and 14° north of the equator and longitude 3° and 15° east of the International Greenwich Meridian. It enjoys a diversity of climates and marked environmental features, including sensitive wetlands. Nigeria's weather is seasonal, in that it has rainy and dry seasons. The country consists of several extensive physiographical plateau surfaces including the Jos Plateau, the Udi Plateau, the Manbila Plateau, and the North Central High Plains. The core Niger Delta (the area covered in this study) is mainly coastal and is covered with young sedimentary rocks, which are also common in the Niger-Benue Trough and the Lake Chad Basin. There exist several other plains with broad and sometimes undulating valleys and numerous hills18 The land mass is peculiar because of the volcanic character of its many hills. The Southern tip of the country consists of approximately 800 kilometers of coastline.19 Historical Governance Systems In pre-colonial times, the various ethnic groups existed as independent native states, separated from one another by great distances.20 These groups often 17 UDO, supra note 14, at 13. 18 UDO, supra note 14, at 1. 19 STEVE AZAIKI, INIQUITIES IN NIGERIAN POLITICS 28 (2003). 20 Wat 59.
23 maintained deep-seated prejudices, largely due to a lack of knowledge of each others' cultural, social, and religious values. In this era, the ethnic groups were organized entirely by sovereign chiefdoms and kingdoms, with distinct traditional methods of political, economic, and environmental governance. For example, before the advent of shipping along the Atlantic coast, the main trading system was by barter. Trade was based on natural resources and other basic products such as palm oil, spices, carvings, and fish. During this era, the traditional rulers had exclusive jurisdiction of trading, and they exercised unfettered control over resources and people.22 Today, the country is divided into 36 States, 774 Local Government Council Areas, and a Federal Capital Territory with three branches of government. Though the present governance structure may appear to be modern, close analysis reveals its diverse historical influences, including the impacts of colonialism, post-colonialism, and independence. 21 These rulers were called by titles such as "King," "Pere," "Amananaowei," "Amayanabo," or "Amaokosuowei." They were also referred to as His Royal Majesty ("HRM"). Specific examples are HRM Pepple of Bonny; HRM Pere Esuku of Tuomo; HRM Pere Kalanama of Akugbene Mein; HRM Pere Zado of Zadobiri Oboro; (excluding Seinbiri Clan) HRM King Jaja of Opobo; HRM Pere Ekere of Oporomor of Bayelsa State; HRM Amaokosuowei of Ogbe-Ijoh Warri, HRM Pere Egran Oporomor of Delta State. 22 Interview with HRH Augustine Ebikeme, Pere Ekere of Oporomor Kingdom (May 7, 2004). The interview was conducted in Ijaw (Izon) vernacular and translated into English by the author. 23 CONSTITUTION, Art. 3 (1999) (Nigeria). 24 Id