Moving Beyond the Blame Game- Finding Solutions to the Environmental Issues in the Niger Delta
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Moving Beyond the Blame Game- Finding Solutions to the Environmental Issues in the Niger Delta By Olive .S. Akem-Vingir Project supervisor: Professor Jorge Guira UNIVERSITY OF READING, SCHOOL OF LAW
Transcript of Moving Beyond the Blame Game- Finding Solutions to the Environmental Issues in the Niger Delta
Moving Beyond the Blame Game- Finding Solutions to the Environmental Issues in the Niger Delta By Olive .S. Akem-VingirProject supervisor: Professor Jorge Guira
UNIVERSITY OF READING, SCHOOL OF LAW
WORD COUNT:
This is a dissertation submitted to the School of Law as part of the requirementsfor the award of an LLM
Statement of Original Authorship
I declare that I have read the notes on plagiarism including its definition andcheating in the Postgraduate Programme Handbook and that this work isentirely free from plagiarism. I understand the consequences of committingplagiarism. I have acknowledged all quotations and ideas as advised in theHandbook. Where I have been in doubt about how to acknowledge an idea orquotation I have consulted my supervisor. Neither this piece of work nor anypart thereof has been submitted in connection with another assessment.
Signature Date
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DEDICATION
This project is dedicated to the Almighty God for seeing me through this project and giving me the grace to continue even when I felt weak. In Him I live, move and have my being.
ACKNOWLEDGEMENTS
I would like to appreciate my wonderful parents, Major General and Mrs. Pat Akem, who supported me and encouraged me throughout the course of this project. For all the times you both asked how this project was progressing and urged me to do my best, I say thank you. Also, my sincere thanks goes to my supervisor Professor Jorge Guira for helping me with this project, from the very beginning to the end of it. Your honest remarks and criticisms motivated me to do my best. Lastly, I would like to thank Engineer Musa Akenn of the Department of Petroleum Resources, Abuja, Mr. Oyekanmi ofNOSDRA and the Nigerian Agip Oil Company (NAOC) staff in Port Harcourt for their welcome reception and assistance to me while writing this project. You are all appreciated.
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TABLE OF CONTENTS
TABLE OF CONTENTS.......................................3ABSTRACT................................................5CHAPTER 1 (Introduction)................................6Background..................................................6Aims and Objectives.........................................7Structure...................................................8
CHAPTER 2...............................................9DEFINING THE NIGER DELTA....................................9DAMAGES CAUSED BY THE OIL POLLUTION......................13
Nigerian Laws Governing Environment from Oil Pollution.....19Best International Environmental Practices Applicable to the Niger Delta Situation......................................24
CHAPTER 4..............................................26Regulatory Enforcements of Oil Spillage in Nigeria.....26CHAPTER 5..................................................34THE BLAME GAME- Establishing Responsibility for EnvironmentalDamage in the Niger Delta..................................34
Measures Taken by the Government to Alleviate Situation in Niger Delta.........................................40
Creation of the Niger Delta Development Commission (NDDC)..........................................................41Establishment of the Federal Ministry of Niger Delta Affairs..................................................43The Niger Delta Amnesty Programme........................45
CHAPTER 6 – THE WAY FORWARD...........................48Solving the issue of Oil Theft.............................49Norway as an Exemplary Model...............................51
Conclusion.............................................54
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ABSTRACT
Nigeria has been recognised as Africa’s largest oil-
producing nation and the sixth largest oil-producing
nation in the world and this is as a result of its
maximum crude oil production capacity of 2.5 million
barrels per day. The oil produced from the Niger Delta
region of Nigeria accounts for more than 90% of Nigeria’s
exports and approximately 80% of government revenue, thus
oil evidently plays a central part in Nigeria’s economy.
However, although Nigeria has benefited immensely from
the oil derived from the Niger Delta, the Niger Delta
region has been subject to environmental degradation
including, oil spillage and groundwater contamination as
a result of the onshore activities of the multinational
oil companies operating in the region, particularly
Shell. Due to this environmental degradation, a blame
game has ensued between the Nigerian Government and the
Multinational oil companies in Nigeria. The multinational
oil companies have strongly argued that majority of the
oil spillage occurring in the Niger Delta is caused by
third party interference whilst the government
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institutions have accredited the blame to the
multinational oil companies for failure to strictly
adhere to environmental laws in Nigeria like the National
Oil Spill Detection and Response Agency Act 2006.
However, this paper urges the stakeholders to look beyond
the blame game and focus on rectifying the environmental
degradation within the Niger Delta. The author proposes
that implementing the NOSDRA Amendment Bill 2012 and
clearly including the “polluter pays” principle within
this amendment would strengthen the capacity of
regulatory agencies to enforce environmental laws. In the
same vein, the Nigerian government and the multinational
oil companies must cooperate together to put an end to
oil theft within the nation as it causes a significant
number of oil spills in the Niger Delta. Lastly, this
paper posits that the Norwegian system of oil governance
be considered an exemplary model of good oil governance
that Nigeria can emulate so as to bring and end to
environmental degradation in the Niger Delta and foster
economic development.
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CHAPTER 1 (Introduction)
Background
Nigeria’s relationships with oil over the decades
has thrived and generated massive wealth for the nation
resulting in the neglect of its strong agricultural
resources and huge dependence on crude oil.1 Oil and gas
account for over 95% of Nigeria’s export earnings and
over 80% of the government’s revenue.2 Nigeria, being a
major oil-producing nation is a member of the
Organisation of Petroleum Exporting Countries (OPEC).3 The
nation’s oil production is presently running at
approximately 2.4 million barrels per day and majority of
the production is onshore with the remainder being
derived from offshore, the continental shelf in both
shallow and deep waters.4 The Niger Delta is a part of the
1 Federal Republic of Nigeria, Economy, accessed at http://www.nigeria.gov.ng/2012-10-29-11-05-46/economy on 21st August 2014.2 Ibid 3 Federal Republic of Nigeria, supra note 14 Michael Watts, “ Sweet and Sour: The Curse of oil in the Niger Delta”, adapted from ‘curse of black gold: 50 years of oil in the
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nation that is home to about 12 million people with
different cultures, languages and histories and it is
from this region that Nigeria derives the majority of its
crude oil. However, it is ironic that whilst the Niger
Delta has yielded many economic and social benefits to
the nation, the Niger Delta has suffered severe damage to
its environment due to oil pollution in certain parts of
the region. Oil pollution in the Niger Delta occurs
regularly in different parts of the region, like the
notable oil spill in the Bodo community in Rivers State.
Oil pollution often leads to massive degradation of the
environment including crop destruction, groundwater
contamination and loss of aquaculture.5
Aims and Objectives
With a focus on the onshore oil activities of
multinational oil corporations, this paper will examine
the effects of oil spillage in the Niger Delta, which has
led to groundwater contamination, crop destruction and
severe health deterioration. It will be argued that inNiger Delta, 2012. 5 S.F.IWEJINGI, Socio-Economic Problems of Oil Exploration and Exploitation in Nigeria’s Niger Delta
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order to remedy the present underdevelopment and massive
environmental degradation in the Niger Delta, the
stakeholders must move beyond the apportioning of blame
and focus on implementing practical measures that would
develop the Niger Delta region. It will be posited that
although the Nigerian laws that regulate oil spillage are
good enough and indeed accord with international
standards like the American Petroleum Institute
Standards, the regulatory institutions lack the capacity
to effectively administer them.6 Consequently this
amounts to a “regulatory capture” because regulatory
agencies have been dominated by the oil multinationals
they are tasked to regulate. This paper will propose
viable solutions that could potentially restore the
environment in the Niger Delta whilst enhancing
sustainable development in the region and Nigeria as a
whole. The paper proposes that the NODSRA Amendment bill
be passed in order to empower the agency to effectively
control and monitor oil spills. It is also argued that a
separation of functions between the Department of
6 American Petroleum Institute available at http://www.api.org/environment-health-and-safety/clean-water/oil-spill-prevention-and-response accessed on
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Petroleum Resources (DPR) and the National oil company,
Nigerian National Corporation (NNPC) is essential to
foster an effective oil sector. Likewise, all
stakeholders must address the issue of oil theft so as to
limit the high level of oil spills that occur due to
sabotage and oil theft as this limits economic growth.
Structure
Chapter two of this project introduces the focus
area of this paper, that is the Niger Delta and
highlights the different parties involved and further
evaluates the damaged done to the environment due to oil
spillage. Chapter three examines the environmental laws
applicable to oil spillage and international laws as
provided by the Minerals oils (safety) Act 1962. Chapters
four and five are the highpoints of this paper as they
discuss the regulatory institutions created by Nigerian
law to regulate oil spill responses and the liabilities
of the government and the multinational oil companies.
The paper concludes with chapter six which discusses the
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proposed solutions to the environmental tragedies of the
Niger Delta.
CHAPTER 2
DEFINING THE NIGER DELTA
The Niger Delta region of Nigeria is where oil of
commercial quantities has been exploited for many years.7
The Niger Delta is situated in the Southern region of
Nigeria covering about 70,000km sq and is made up of nine
7 “The Environmental Impacts of Crude Oil Spills in Niger Delta, Nigeria : 2000-2011”
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oil-producing states. Historically, the Niger Delta
Consists of Bayelsa State, Delta State and Rivers State.
However, under the administration of former President
Olusegun Obasanjo the Niger Delta was extended to include
Abia, Akwa Ibom, Cross Rivers, Edo, Imo and Ondo States
thus making them nine States in total.8 The region is
also the hometown to more than 40 different ethnic groups
including the Urhobos of Delta State, the Ijaws of
Bayelsa State, the Edos of Edo State and others.9 It is
estimated that the present population of those residing
in the Niger Delta is approximately 30 million people,
living in 3,000 different communities.10 The region’s oil
accounts for approximately 90% of the value of Nigeria’s
exports.11 Its ecological zone is composed of coastal
8 O.Okafor, “ The State of Environmental Monitoring in Nigeria and Ways to Improve it :Case Study of Niger Delta”, (2011) Accessed at http://www.academia.edu/909562/The_State_of_Environmental_Monitoring_in_Nigeria_and_Ways_to_Improve_It_Case_Study_of_Niger_Delta on 1st August 2014. 9 A.M Bayagbon, “ Impact Assessment of the Environmental Protection Policies in the Upstream oil Industry in Nigeria”, (2011)10 NDDC 200611 N.A Onyekuru, “Environmental Regulations and Nigeria’s Economic Decision on the Niger- Delta Crisis: The Way Forward” Accessed at http://www.ajebs.com/vol6/26.pdf
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barrier sandy ridges, mangrove swamps, freshwater swamps
and lowland rainforests.12
The mangrove swamps located in the Niger Delta is
the largest in Africa and the third largest in the
world.13 The Niger Delta is considered to be one of the
ten most important wetlands and coastal marine ecosystems
in the world.14 The Delta is made up of habitats for many
species, including several primates, ungulates and birds.
The region is endowed with an abundance of ecological and
mineral natural resources, which accounts for a greater
percentage of Nigeria’s proven oil and gas reserves. As a
result of its proven oil and gas reserves, oil activities
have been going on in the area since the 1950s. The
exploration and exploitation of oil in the Niger Delta
started in 1937 by Shell D’Archy, which is now known
today as Shell Petroleum Development Company Limited
(SPDC). However, the production of crude oil started in
1956 after the discovery of crude oil in Oloibiri village
12 World Bank, “Defining An Environmental Development Strategy for the Niger Delta”, 1995. 13 Stevens, “The Illusion of Sustainable Development: How Nigeria’s Environmental Laws are failing the Niger Delta, (2012) vol 36, ”, Vermont Law Review.14 IUCN/CEESP 2006
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in Bayelsa State.15 By 1958, Nigeria had started
producing 5,100 barrels of crude oil per day and indeed
exported its first crude oil to Europe.16 The Niger Delta
has a total of 606 oil fields with 355 onshore and 251
offshore. As of 2006, 193 oil fields were operational
while 23 had been abandoned due to bad prospects or
drying up.17 However, as a result of the oil production
carried out in the Niger Delta, the environment has
suffered degradation and depletion as oil is spilled in
the region on a daily basis. It has been argued that the
amount of oil spilled in the Niger Delta annually is
equal to the oil spilled during the Exxon Valdez oil
spill.18 Over 50 years of continuous oil spills in the
region has had adverse effects on the environment and led
to the pollution of the land, contamination of water and
soil and destruction of crops, limiting its long-term
productivity.19
15 E.Egede, “Human Rights and the Environment: Is there a Legally Enforceable Right to a Clean and Healthy Environment for the People of the Niger Delta Under the Framework of the 1999 Constitution of the Federal Republic of Nigeria?”, vol 55, (2007) 19 Sri Lanka Journal of International Law16 Stevens n(12)17 NNPC 200618 A.Nossiter, “Half a World from the Gulf, A Spill Scourge 5 Years Old, N.Y Times, June 17, 2010.19 Stevens supra note 14
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The Parties Involved in the Niger Delta Environmental
Crisis
Majority of the oil activities carried out in
Nigeria are done through the use of joint ventures (JV)
by the Nigerian Government, which is represented by its
national oil company, NNPC and the multinational oil
companies.20 The upstream oil industry in Nigeria has
some critical players and these include the Federal
government, the multinational oil companies and the host
communities. All the oil companies operating in Nigeria
adhere to the government operating rules and by law these
international oil companies must legally be sub-entities
of the main corporation.21
In Nigeria, the major operating multinational oil
and gas communities are Chevron Nigeria Limited, Mobil
Nigeria Limited, SPDC, Total and Eni.22 However, Chevron20NNPC, Joint Venture Operations http://www.nnpcgroup.com/nnpcbusiness/upstreamventures.aspx 21 often times these companies incorporate “Nigeria” to their name while operating within the nation. 22 O.Okafor, “ The State of Environmental Monitoring in Nigeria and Ways to Improve it : Case Study of Niger Delta”, 2011 Accessed at http://www.academia.edu/909562/The_State_of_Environmental_Monitoring_in_Nigeria_and_Ways_to_Improve_It_Case_Study_of_Niger_Delta on 1st August 2014.
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Nigeria, Mobil Nigeria Limited and SPDC remain the three
major players in Nigeria. Chevron Nigeria Limited is the
third largest oil producer in Nigeria and indeed one of
its largest investors.23 Chevron operates under a joint
venture agreement with the NNPC. Chevron has assets on
land, in the swamps and near offshore concessions, which
cover approximately 2.2 million acres in the Niger Delta
region.
The second largest oil operator in Nigeria is Mobil
Nigeria Limited, which is a subsidiary company of Exxon
Mobil Corporation.24 Like Chevron, Mobil Nigeria operates
under a joint venture agreement with NNPC. The Federal
Government has a 60 per cent share in the operation while
Mobil Nigeria receives the remaining 40 per cent. SPDC
is the largest oil producer within the region and it has
been extracting oil in the Niger Delta since 1958.25
Today, Nigeria accounts for 12% of Shell’s global oil
23 Chevron, Highlights of Operations in Nigeria, May 2014 http://www.chevron.com/countries/nigeria/ 24 Exxon Mobil in Nigeria, http://www.exxonmobil.com.ng/nigeria-english/pa/about_who.aspx 25 Shell Nigeria, accessed at http://www.shell.com.ng/aboutshell/our-business/bus-nigeria/e-and-p/spdc.html on 1st August, 2014
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extraction.26 The Joint venture operated by Shell is
composed of NNPC, the majority shareholder with 55%,
Shell Nigeria with 30%, Elf with 10% and the Nigerian
Agip Oil Company limited (NAOC) with 5%.27 SPDC operates
mainly onshore, on dry land or in the mangrove swamp in
the Niger Delta. Majority of its joint venture operations
are in shallow waters and onshore in the Niger Delta and
this spreads over approximately 20,000 square
kilometers.28 SPDC operates within the remits of the
joint venture agreement it has with the federal
government. 29 Amongst all the International Oil
Companies (IOCs) operating in the Niger Delta, SPDC is
primarily responsible for majority of the ongoing oil
exploration activities in the region that have led to
26 B.Amunwa, “Counting the Costs – Corporate and Human Rights Abuses in the Niger Delta”, Platform London, October 2011. Accessed at http://platformlondon.org/nigeria/Counting_the_Cost.pdf on 15th August, 201427 NNPC, Supra note 20; S.D. Ngoran, ‘Oil Spill Governance in the Niger Delta- Nigeria: Analysis of Gaps and Policy Recommendations’, (2011) <http://www.academia.edu/2478571/OIL_SPILL_GOVERNANCE_IN_THE_NIGER_DELTA-NIGERIA_ANALYSIS_OF_GAPS_AND_POLICY_RECOMMENDATION > accessed on 2nd August 2014. 28Shell in Nigeria : Shell Interest in Nigeria <http://s07.static-shell.com/content/dam/shell-new/local/country/nga/downloads/pdf/2014bnotes/shell-interests.pdf >29 ECCR, ‘Shell in the Niger Delta: A Framework for Change’, February2010, <file:///Users/User/Downloads/ECCR_report_Shell_in_the_Niger_Delta_2010%20(1).pdf >
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severe environmental degradation.30 Despite the severe
degradation of the environment, Shell remains a
significant multinational operator in the Niger Delta.
DAMAGES CAUSED BY THE OIL POLLUTION
Since the discovery of oil in the 1950s, Nigeria has
suffered the negative environmental effects of oil
development particularly the Niger Delta where crop
destruction, water contamination and health issues are
rampant. The nation best depicts the “oil curse” as
although there have been many economical advantages
particularly oil revenue; the adverse effects of oil
production remain evident.31 In the Niger Delta, oil
spillage has led to the contamination of soils,
groundwater pollution and ecosystem degradation. Spills
that occur in populated areas often spread out over a
30 David M.Ong, ‘Remedying Oil Spills in the Niger Delta: Elements for Assessing Responsibility’ University of Essex, Corporate liability in A New Setting: Shell and the Changing Legal Landscape for the Multinational Oil Industry in the Niger Delta 31 M.Baghebo, U.P Samuel & E.N.Nwagbara, ‘Environmental Damage causedby the Activities of Multi National Oil Giants In the Niger Delta Region of Nigeria’, (2012), vol 5(6) Journal of Humanities and SocialScience
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wide area, consequently destroying crops and aquacultures
through contamination of the groundwater and soils.32
Groundwater has been the main source of potable
water supply for domestic, industrial and agricultural
use in the Niger Delta region for decades. Thus, prior
to the water degrading activities, the water in the Niger
Delta was suitable for drinking, and other domestic
purposes because it was free of any chemical or
biological impurities.33 However, as a result of
industrial activities, including the exploration of oil
and gas, oil pollution of water has gradually increased.
Ground water contamination is so severe that the water
supply must cease to be a source of drinking water.34 In
Imo State, one of the nine oil producing states in the
Nigeria, it was discovered after investigation that water
samples from public wells in Ohaji Local Government Area
32 S.O.Adelana, T.A. Adeosun, A.O Adesina &M.O Ojuroye, ‘ Environmental Pollution and Remediation: Challenges and Management ofOil Spillage in the Nigerian Coastal Areas’, (2011) American Journal of Scientific and Industrial Research. 33 G.T Amangabara & J.D Njoku, ‘Assessing Groundwater Vulnerability to the Activities of Artisanal Refining in Bolo and Environs, Ogu/Bolo Local Government Area of Rivers State ; Nigeria’, British (2012), vol 2(1), Journal of Environment and Climate Change 34 Getting Up to Speed ‘for section C,“Ground Water Contamination’ isadapted from US EPA Seminar Publication. Wellhead Protection: A Guidefor Small Communities. Chapter 3. EPA/625/R-93/002.
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where oil spillage had occurred had a high total
hydrocarbon content which was not the same for other non-
polluted areas. The results of the investigation showed
that the groundwater of the study area had been polluted
as a result of oil spillage and non-treatment of the
polluted area could result in poor health and low life
expectancy.35 In the same vein, another study of samples
collected from Okpai, Beneku and Ndokwa Local Government
Areas in Delta State (a major oil producing state)
revealed that the evidence of colour in the ground water
was an indication of oil contamination. It was stated
that the colour in the water could be attributed to
dissolved salts and other materials like nitrate
concentration, sulphate concentration and phosphate which
were present as a result of exploration, exploitation,
production and transportation activities from the oil
wells.36 In the report by the United Nations Environment
Programme on Ogoniland in Rivers State, Niger Delta,
detailed soil and groundwater contamination
35 G.T Amangabara supra note 3336 A.Dami, H.K.Ayuba & O.Amukali, ‘Groundwater pollution in Okpai andBeneku, Ndokwa- east local government area, Delta State, Nigeria’, (2013), vol 4(1) Journal of Environmental Research and Management..
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investigations were conducted at 69 different sites. 37 It
was revealed that in at least 10 Ogoni Communities
drinking water was highly contaminated with high levels
of hydrocarbons.38 Specifically, in Nisisioken Ogale, a
community in western Ogoni, families were drinking water
that was contaminated with benzene at levels over 900
times above the World Health Organisation (W.H.O)
guidelines. It has been established by W.H.O that human
exposure to benzene, which is found naturally in crude
petroleum, can lead to long-term adverse health effects
and diseases including cancer and aplastic anaemia.39 The
contamination of water within the region is hazardous to
the health of the people and can degrade the quality of
life and possibly lead to early death.
Vegetation in the Niger Delta consists of mangrove
forests, brackish swamp forests, and rain forests. The
mangrove forests in the region are estimated to cover
37 UNEP Ogoniland Oil Assessment Reveals Extent of Environmental Contamination and Threats to Human Health, August 2011. Accessed at <http://www.unep.org/newscentre/default.aspx?ArticleID=8827&DocumentID=2649> 3 September 2014.38 ibid 39 W.H.O, “EXPOSURE TO BENZENE: A MAJOR PUBLIC HEALTH CONCERN”, 2010.Accessed at http://www.who.int/ipcs/features/benzene.pdf , see also United States, Environmental Protection Agency (EPA), Benzene: TEACH Chemical Summary accessed at http://www.epa.gov/teach/chem_summ/BENZ_summary.pdf
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approximately 5,000 to 8,580km sq of land. Constant
pollution of these forests by oil has caused about five
to ten per cent of these mangrove forests to disappear.
Also, the vicious properties of petroleum have wiped out
large areas of vegetation. The effects of these oil
spills on mangroves are known to acidify the soils, halt
cellular respiration and deprive plant roots of oxygen.40
The loss of mangrove forests in the area is not only
disadvantageous to the plants and animals but also to the
local people living in the area. For many years,
mangroves have been a source of wood for the people. The
locals, for cooking, making of furniture and so on often
use the wood derived from the mangroves. The destruction
of the mangrove has greatly affected their survival. In
addition, people living around the mangrove swamp rear
fishes in the mangroves. However, oil pollution of the
mangrove swamps kills the fishes, which consequently
affects the sustainability and livelihood of the Niger
Delta people, as many of them are reliant on fishing as a
means of occupation41. A large portion of the terrestrial
40 S.O Adelana et al, supra note 3241 F.A.Orji & O.C.Ugbogu, “[Petroleum Hydrocarbon Pollution of Mangrove Swamps: The Promise of Remediation by Enhanced Natural
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ecosystem in the Niger Delta region are important
agricultural lands which are constantly used for
cultivation and peasant farming.42 Oil spillage into the
agricultural lands in the Niger Delta was first reported
in 1971 and the effects of the crude oil spills on the
lands have been drastic. 43 The contamination of the soil
by oil has hindered the germination and affects the
growth of crops. For instance, Abelmoschus esculentus is
a widely cultivated vegetable crop in the Niger Delta but
crude-oil contaminated soil has hampered its growth
resulting in poor and low crop yield.44 Any crop in
areas that are directly affected will be damaged and root
crops like cassava become unusable. Therefore, it is
evident that oil spillages have severe implications on
Attenuation”, American Journal of Agricultural and Biological ScienceScience, (2012), Vol 7(2)42 A.E.Ite ,U.J.Ibok, M.U.Ite & S.W.Petters, “Petroleum Exploration and Production: Past and Present Environmental Issues in the Nigeria’s Niger Delta” (2013) vol 1(4), American Journal of Environmental Protection43 Odu, C. T. I., ‘Microbiology of soils contaminated with petroleum hydrocarbons: I. Extent of contamination and some soil and microbial properties after contamination,’(1972), Journal of Institute of Petroleum, pg 201-208.44 Oyedeji, A., A. Adebiyi, M. Omotoyinbo, and C. Ogunkunle, ‘Effect of Crude Oil-Contaminated Soil on Germination and Growth Performance of Abelmoschus esculentus L. Moench—A Widely Cultivated Vegetable Crop in Nigeria,’ (2012), vol 3(10) American Journal of Plant Sciences, pg 1451-1454
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the agricultural productivity of affected areas in the
Niger-Delta.
Furthermore, it is known that severe exposure to oil
spills can lead to adverse health effects that are
associated with petroleum-contaminated environments. 45
Host communities like the Ogoniland in Rivers state have
suffered from significant environmental degradation and
health impacts including increase in respiratory diseases
and cancer cases. According to UNEP, the health of
several Ogoni communities have been put at risk and
jeopardised as a result of surface and groundwater
contamination associated with oil exploration and
production activities. 46 Water contamination in the
Niger Delta is responsible for the incidence of water-
borne diseases such as typhoid, cholera, bacillary,
dysentery, river blindness and guinea worm infection.47
Between 2004-2005 in Bayelsa State, it was discovered
that there was a high occurrence of diarrhea within45 A.E.Ite ,U.J.Ibok, M.U.Ite & S.W.Petters, “Petroleum Exploration and Production: Past and Present Environmental Issues in the Nigeria’s Niger Delta” (2013) American Journal of Environmental Protection vol 1(4)46UNEP, supranote 37 47 O.C.Okpo, R.C.Eze, “Vandalization of Oil Pipelines in the Niger Delta Region of Nigeria: An Overview” (2012) Studies in Sociology of Science vol 3(2) .pg. 13-21
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communities in the State as a result of lack of safe
potable water to drink.48 As opposed to benefitting from
the heavy oil exploration carried out in their
communities, the local people of these host areas have
instead borne the environmental burden, adverse human
health risks and socio-economic costs associated with the
oil activities that have gone on in the area for many
decades. 49
The consequences of the oil spills in the Niger
Delta are felt across the entire region. According to a
study carried out by World Bank in 2003, it was
discovered that the poorest half of households within the
Niger Delta obtain almost 60 per cent of their income
from environmental resources.50 If crop income were to be
included in this category, then environmental income
would account for 100 per cent of household income. The
implication of this survey is that as a result of the
environmental degradation in the Niger Delta, the very
48 Nigerian Agip Oil Company Limited (NAOC), EIA of Ekedei Deep A Exploratory Drilling Project, Final Report. 49 A.E.Ite, U.I,Ibok et al, supra note 4550 World Bank, “Nigeria Poverty-Environmental Linkages in the NaturalResource Sector.” Africa Environment and Social Development Unit. World Bank Institute, June (2003).
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means of survival in the region are affected as the oil
spills have a negative impact on fishing and farming
which are major occupations in the region. Thus, in
linking the high level of poverty and environmental
issues in the region, it becomes evident that the Niger
Delta region has a high vulnerability to poverty because
majority of its population depends heavily on the
environmental resources as a means of income.51
CHAPTER 3
LAWS AND INSTITUTIONS FOR ENVIRONMENTAL PROTECTION IN THE
NIGER DELTA
Nigerian Laws Governing Environment from Oil Pollution
51 World Bank, “Republic of Nigeria: Niger Delta Social and Conflict Analysis”, May (2008)
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As provided in Section 44 (3) of the 1999 Constitution,
minerals, mineral oil and natural gas, whether found on
land or upon the territorial waters are under the
absolute control of the government of Nigeria. Thus the
Federal Government has the power and responsibility to
regulate the petroleum sector through laws prescribed by
the National Assembly. 52 Therefore, in regards to
protection of the environment in case of oil spills,
several laws and regulations, which take into
consideration the management of oil spills, regulate the
Nigerian oil industry and some of these include the
Petroleum Act of 1969, the Environmental Guidelines and Standards
for the Petroleum Industry in Nigeria (EGAPSIN) 2002, the Environmental
Impact Assessment Act 1992, the National Oil Spill Detection and Response
Agency (NOSDRA) Act of 2006 and the Petroleum Drilling and Production
Regulations 1969. The main incident that triggered the
enactment of environmental laws in Nigeria was the
dumping of toxic waste in Koko, a small town in former
52 Section 44(3) of 1999 Constitution. See also Section 1 of the 1999 Constitution which states that “the entire ownership and control of all petroleum, in under or upon any lands shall be vested in the state”.
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Bendel State now Delta State.53 This led to the creation
of the Harmful Wastes Decree 1987 and the Federal
Environmental Protection Decree of 1988. These laws paved
the way for other oil industry specific environmental
laws. 54The basis of all these laws lies in Section 20 of
the 1999 Constitution of the Federal Republic of Nigeria.
This law makes the protection of the water supply, air,
forests and wildlife a major objective of the Nigerian
State.55 Thus, as a result of this provision, the
Nigerian government is tasked with the duty of managing
risks to human safety and the environment.
With regards to groundwater and soil contamination,
the EGAPSIN provision is of great importance and it has
been referred to as the most important set of provisions
on environmental management of oil spills in Nigeria.56
53 N.Echefu & E.Apkofure, “Environmental impact assessment in Nigeria: regulatory background and procedural framework, UNEP EIA Training Resource Manual.54 A.Ambituuni, “Analysis of Safety and Environmental Regulations forDownstream Petroleum Industry Operations in Nigeria :Problem and Prospects” (2014) Environmental Development, Vol 1(9) 55 Craig C, Croft J and Samiama I ‘Environmental Regulation and Pollution Control in the Global Oil Industry in relation to reform inNigeria’ Stakeholder Democracy Network, <http://www.stakeholderdemocracy.org/uploads/images/content_images/fonts/Environmental%20Regulation%20and%20pollution%20Control%20in%20the%20global%20oil%20industry%20in%20relation%20to%20reform%20in%20Nigeria.pdf > accessed 4th August 201456 DPR, “Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (EGAPSIN)
28
The EGAPSIN is designed to minisimise oil pollution and
ensure that those responsible for the contamination of
the soil and groundwater are made to restore those
contaminated areas back to safety levels. The Department
of Petroleum Resources (DPR) in 1991 created the EGAPSIN,
which was revised and then later updated in 2002. The
guidelines were written by the DPR, which is also
responsible for its administration.57 Also, the guidelines
set out the powers of the DPR, which include the seizure
of premises, imposition of fines and shutdown of
installations. According to Section VII 2.11.3 of the
EGAPSIN, any operator or owner of a facility that is
responsible for a spill that results to an impact on the
environment is required to monitor the impacted
environment alongside the restorative activities. 58 It
further provides that clean-up shall commence within 24
hours of the occurrence of the spill. Within 24 hours of
the spill, the oil company must submit an “oil spill
notification report” to the Director of DPR Nigeria.
Thus, any multinational company responsible for an oil
57 EGAPSIN 58 EGAPSIN Section VIII 4.0
29
spillage is mandated to clean up, monitor and restore the
affected area back to normality. However, from a close
observation of Joint Investigation Visits (JIV) that are
carried out on the oil spill sites, it is evident that
there is usually a delay before such a visit takes place
and before clean up commences. For example, in the month
of August 2014, oil was spilled on the 1st of August 2014
in Rivers State. According to the JIV report, the
visitation to the site did not occur until the 7th day
after the spill, which was the 8th of August.59 Also, the
investigation of the site went on for two days. This is
evidence that Section VII 2.11.3 of the EGAPSIN guideline
that stipulates that clean up occurs within 24 hours of
the spill is not being followed by the parties or
implemented strictly by the DPR. Section 2.11.3 (i) of
the provision goes further to state that no matter the
extent of the spill, there must be no visible oil sheen
in the waters after the first 30 days of the occurrence
of the spill. The EGAPSIN provides that these clean-up
59 The Shell Petroleum Development Company Limited, Joint Investigation Report No- 122756, accessed at http://s07.static-shell.com/content/dam/shell-new/local/country/nga/downloads/pdf/oil-spills/2014/august/1227576-8in-jiv.pdf
30
methods be adopted until there is no more visible sheen
of oil on the water.60 However, as was seen during
fieldwork in Ogoni land by UNEP, hydrocarbon sheen was
present on the land on a daily basis. An oily sheen is
said to be ever-present on the water surface of the
creeks around some of these affected environments. Also,
the UNEP report on Environmental Assessment of Ogoniland
showed that numerous areas were contaminated beyond the
50mg/kg of total petroleum hydrocarbon EGAPSIN target
range and sometimes above the 5,000 mg/kg of the EGAPSIN
intervention level. 61 This evidence casts doubts on the
implementation of the EGAPSIN guidelines by the DPR.
In addition to the already stated laws is the
Environmental Impact Assessment Act of 1992, which was introduced
in Nigeria as a pollution preventative regulatory tool.
The purpose of an Environmental Impact Assessment (EIA)
is to ensure that potential impacts of a proposed project
are assessed, identified and mitigation measures are
implemented where possible to limit negative impacts
60 EGAPSIN Section 2.11.3 (i)61 R.Steiner, “ Double Standard: Shell Practices in Nigeria compared with international Standards to Prevent and Control Pipeline Oil Spills and the Deepwater Horizon Oil Spill”, (2010)
31
accruing from the project. According to Section 7 of the
EIA decree, the public or private sectors of the economy
shall not commence or authorise any projects or
activities without taking into consideration at an early
stage, any environmental effects. 62 It further states
that before the agency gives a decision to any activity
to which an EIA has been produced, the agency must give
an opportunity to government agencies, members of the
interested public, experts in any relevant discipline and
interested groups to make their comments on the EIA of
the activity to be carried out.63 The decree also makes
provision for how these comments should be handled. Any
EIA document prepared must include reports and minutes of
meetings of any community or stakeholder participation
conducted.64 The EIA report must also be placed in a
minimum of 5 public locations, which includes the
affected community for 21 working days before the public
62 Environmental Impact Assessment Decree No.86 of 199263 ibid EIA 1992, Section 26(a)64 R.Adomokai & W.R. Sheate, “Community Participation and Environmental Decision-making in the Niger Delta”, (2004) Environmental Impact Assessment Review, pg 495-518
32
review is held. This is done to give those who have
comments and concerns to make, an opportunity to do so.
An example of this EIA report is the Nigerian Agip
Oil Company’s Ekedei Deep A Exploratory Drilling Project
that was carried out in Bayelsa State. The EIA was
carried out in line with the statutory requirements for
environmental management in Nigeria.65 In justification
of the project, the report stated that the developing and
ultimately producing of hydrocarbon in the area was in
accordance with Nigeria’s aspirations to produce more
crude oil and would increase revenue to the nation, state
and local government, whilst creating employment and
career development opportunities for members of the
nearby communities.66However, the effectiveness of this
provision has been questioned as some projects have been
carried out within the country without an EIA being
65 Nigerian Agip Oil Company Limited (NAOC), EIA of Ekedei Deep A Exploratory Drilling Project, Final Report. 66 NAOC, EIA of Ekedei Deep A Exploratory Drilling Project, Final Report. Pg 2. The report lists out the beneficial results of the project, the adverse effects and the mitigation measures to be employed to control the adverse impacts. The Federal Ministry of Environment, Housing and Urban Development on 28th July 2008, approved the project. Similar approach and approval was taken with the Tebidaba Field project in 2005 (EIA of Tebidaba Field Further Development) .
33
undertaken. An example of this is the Bonny Liquefied
natural gas plant, which commenced without any EIA.67
Another legislation that covers pollution in Nigeria
is the National Environmental Standards and Regulation Enforcement
Agency (NESREA) Act of 2007. According to Section 7 (c) of the
NESREA Act, the Agency has the power to enforce
compliance with the provisions of international
agreements, protocols, conventions and treaties on the
environment, including climate change, biodiversity
conservation, amongst others.68 The Agency also has the
power to conduct public investigations on pollution and
degradation of natural resources in Nigeria, however with
an exemption of oil and gas.69 In the event of a
violation of the NESREA Act, the offender will be fined
200,000 naira (approximately $1,200) or a term of
imprisonment for a maximum of one year, or both. 70 These
penal provisions are similar to those in the NOSDRA Act
although the NESREA Act penalties are more stringent and
67Emeseh E, ‘The Limitations of Law in Promoting Synergy Between Environmental and Development Policies in Developing Countries : A case study of the petroleum industry in Nigeria’, 24(4), J.Energy Nat.Resource law pg. 574-60668 NESREA 200769 ibid 70 NESREA Act, Section 20(3)
34
extensively detailed.71 However, these provisions do not
extend to oil and gas pollution.
Best International Environmental Practices Applicable to
the Niger Delta Situation.
In an attempt to limit and prevent oil spills in the
nation, particularly the Niger Delta, Nigerian law
requires that oil companies operating within the country
adhere to good oil field practices by complying with
internationally recognised American Petroleum Institute
(API) and American Society of Mechanical Engineers (ASME)
standards for all petroleum production and transportation
operations and this is stated in the Minerals Oils (Safety)
Regulations of 1962. 72 The American Petroleum Institute
(API) Standards is often recognised globally as good oil
field practice as it maintains about 500 various
standards covering all segments of the oil and gas
71 ibid see Section 27 (2), (3)72 Minerals Oil safety Regulations of 1963, Part III
35
industry.73 It provides standards, recommended practices,
specifications, codes, technical publications, reports
and studies that cover every segment of the oil and gas
industry including cost-effective solutions to soil and
groundwater protection problems and oil spill prevention
and response.74 Good oil field practice has been defined
as an objective standard according to which all
operations should be conducted. 75 Thus, all oil companies
operating within the Niger Delta are to carry out their
operations in accordance with these internationally
recognised standards. Shell for instance is listed as a
member of the American Petroleum Institute and is thus
fully aware and informed of all their relevant standards
and commitments to environmental protection and safety
performance.76 Therefore, SPDC ought to uphold these
international oil industry standards.
73 some of these API standards include the Pub 1133 Guidelines on Onshore Pipelines Affecting High Consequence Flood Plains, 200574American Petroleum Institute (API) , supra note 675 Zhiguo G ,‘Environmental Regulation of Oil and Gas’, 1 Jan 1998 , Recommended Practice for Pipeline SCADA Displays, 2007 and many others. 76 API Member Companies http://www.api.org/globalitems/globalheaderpages/membership/api-member-companies#S
36
Likewise, the U.S law on Integrity Management and High
Consequence Areas as incorporated in the U.S Code of
Federal Regulation (CFR) for managing pipeline integrity
and codified by the API is of great significance. The U.S
Integrity Management regulations can be considered an
international good oil field practice. The U.S Integrity
Management regulations focus on high consequence areas of
which the Niger Delta can be so classified as it
possesses the features of a high consequence area. A high
consequence area has been defined as an area with high
human population, navigable waterways, or environments
unusually sensitive to oil spills.77
All the aforementioned laws, both national laws and
recognised international standards are applicable to the
oil and gas industry in Nigeria and expressly dictate how
the oil industry operates in terms of good practice, oil
spill prevention and cleanup. However, these laws would
be futile without regulatory institutions to enforce them
and these institutions; particularly in regards to oil
spill management are discussed in the next chapter.
77 R.Steiner, supra note 61
37
CHAPTER 4
Regulatory Enforcements of Oil Spillage in Nigeria
In order to give effect to the laws and regulations,
regulatory bodies were established which are the DPR
under the Federal Ministry of Petroleum Resources and
NOSDRA under the Federal Ministry of Environment.
Nigeria operates under a federal system of government and
this means that powers within the country are separated
between the federal government and the various state
governments. Nigeria has a three-tier administrative
structure, which is made up of the Federal Government
(with the Federal Capital Territory, Abuja), 36 state
governments and 774 Local Government Councils.78 Each
state is independent and separate from the other and has
the will and authority to conduct its own affairs.79 Due
to this federal system, there are also ministries and
78 Government of the Federal Republic of Nigeria, Nigeria Millennium Development Goals Report (2010)79 ,E.Emeseh, supra note 67
38
environmental protection bodies at the state level. For
instance, the Rivers State Ministries of Environment and
Water Resources and the Edo State Ministry of Environment
which are responsible for the management of environmental
issues of areas within these states.80 It is important to
note that the local government bodies do not have any
official role in either environmental management or
regulation of the oil industry, however, in reality they
are involved in both issues due to their physical
presence in the oil-producing states. 81 NOSDRA is the
lead Agency for all matters relating to oil, spill as
authorised by the Federal Government of Nigeria and this
makes it a crucial agency for the purpose of this paper.82
NOSDRA was established by the NOSDRA (Establishment) Act
of 2006.83 The Agency was created by the Ministry of
Environment to administer the National Oil Spill
80 Federal Republic of Nigeria Website accessed at http://www.nigeria.gov.ng/2012-10-29-11-06-21/south-south-states . Likewise, in Akwa Ibom which is another state in the Niger Delta region, the Environmental Protection and Waste Agency Law was established which created the Environmental Protection and waste management Agency. See L.C.Micah, U, Ironkwe & O.Adebayo, “Corporate Social Responsibility and Compliance with Regulations in Nigeria”, Research Journal of Finance and Accounting, (2012) vol 3(2)81 Ibid Section 7 of 1999 Constitution82 NOSDRA Act 2006, Section 19(2)83 ibid Section 1 (1)
39
Contingency Plan (NOSCP) in line with the International
Convention on Oil Pollution Preparedness, Response and
Cooperation of 1990 of which Nigeria is a signatory.84
NOSCP is solely focused on the immediate, emergency
response in the event of an oil spill. NOSDRA has the
mandate of playing the lead role in ensuring timely,85
effective and appropriate response to oil spills as
provided in Section 5 of the NOSDRA Act.86 Furthermore,
Section 6 of the Act states that the Agency shall co-
ordinate the implementation of the contingency plan for
the removal of hazardous substances as may be issued by
the government.87 Thus, the regulatory functions of the
Agency are not exclusively limited to the management and
control of oil spills although this is its main focus.
In accordance with the powers granted to NOSDRA by
Section 26 of the Act, NOSDRA has created two regulations
based on the NOSDRA Act, which are the Oil Spill
Recovery, Clean-up, Remediation and Damage Assessment
Regulations, 2011 and the Oil Spill and Oily Waste
84 NOSDRA, Mission Accessed at http://www.nosdra.org.ng/mission.html 85 NOSDRA Act 2006, Section 19(2) 86 ibid Section 5(a) 87 NOSDRA Act 2006, Section 6(d)
40
Management Regulations, 2011.88 These regulations are
based on provisions stated in the NOSDRA Act and give
specific guidelines on operational procedures for spill
response and oil spill management. However, since its
establishment, very limited resources have been allocated
to the Agency, consequently NOSDRA lacks the capacity to
carry out effective oil-spill detection as mandated in
Section 1(1) and 6(1) of the NOSDRA Act. 89 It has to
rely on oil companies for equipment for oil spill
detection. Part II of the Oil Spill Recovery, Clean up,
Remediation and Damage Assessment Regulations of 2011
specifically states that the operator of any onshore
facility that emits oil upon land or navigable waters
shall provide the monitoring system and equipment for oil
spill detection.
Furthermore, the Director-General of NOSDRA, Peter
Idabor contends that one of the key problems of the
Agency is that it lacks the capacity to carry out oil-
spill detection on its own without having to rely on the
88 Federal Republic of Nigeria Official Gazette, “Oil Spill Recovery,Clean-up,Remediation and Damage Assessment Regulations, 2011, “Oil Spill and Oily Waste Management Regulations, (2011)89 ibid
41
oil companies’ reports.90 Also, according to the UNEP
report on the Ogoniland, one of the major concerns about
the Agency is that it suffers from a shortage of senior
and experienced staff that understands the oil industry
and can duly exercise effective technical expertise.91 The
reason for this is that those with the required expertise
and technical knowledge find more rewarding job
opportunities in the oil sector itself rather than the
regulatory and monitoring agencies. Thus, when technical
expertise is required by NOSDRA to detect and respond to
oil spills as mandated by the Act; it sometimes has to
engage the services of external oil field experts to
assess the cause of the spill and the extent of the
damage done to the environment. Due to inadequate funds,
the principle of the “polluter pays” may be used to cover
the expenses of the hired expert damage valuers.92 The
“Polluter Pays Principle” as implemented in Nigeria
demands that the company responsible for the oil spill
fulfills his obligations by paying some of the
90 UNEP, supra note 37, p. 14091 ibid92 The National Oil Spill Contingency Plan 2000, paragraph 20.0, pg 124, this provision endorses the polluter pays principle.
42
administrative expenses of the regulatory agencies that
regulate pollution activities.93 The principle as defined
by the United Nations, states that those responsible for
damage done to the environment must bear the costs
associated with the damage.94 However, as stated by the
legal adviser of NOSDRA in a discussion with him on the
limitations of the Agency, the oil polluters often refuse
to obey the principle.95 Rather, the oil companies employ
their own team of experts to assess the impacted areas.
It has been argued that this goes against the rule of
natural justice that advocates procedural fairness. Thus,
by evading the law and the polluter pays principle, the
oil companies become judge and jury of the impact of
their spillage.
Section 19 of the NOSDRA Act is fundamental to the
regulation of oil spillage in Nigeria. The Section states
that the Agency shall assess the extent of the damage
93 Rio Declaration 1992, Principle 16 (Having acceded to the Declaration, Nigeria has accepted the provisions of the Declaration) T.O Okenabirhie , ‘Polluter Pays Principle in the Nigeria Oil and GasIndustry: Rhetoric’s or Reality?’ Centre for Energy, Petroleum and Mineral Law Policy, University of Dundee. < file:///Users/User/Downloads/cepmlp_car13_26_427878273.pdf > accessed6th August 201494 UNEP, Taking Action, chapter 2 (1995)95 Interview with Gboyega Oyekanmi, Legal Adviser of NOSDRA, ( NOSDRA Headquarters, Abuja, 3 September, 2014)
43
caused due to oil spills, undertake a post-spill impact
assessment to determine the extent and intensity of
damage and long-term effects and advise the governments
on possible effects on the health of the people. 96 By
virtue of Section 19 (d) and (e), NOSDRA has the crucial
duty to ensure that remediation action is taken for the
restoration and compensation of the environment and the
Agency is required to carry out mediation between the
affected communities and the oil spiller.97 While this
provision appears to be highly significant, its
effectiveness is limited by the fact that it attaches no
penal actions for a failure to pay compensation to the
affected community and to carry out remediation and clean
up. This limits the enforceability of the provision, as
there is no means of holding oil polluters accountable
for a failure to compensate. This is evident in the
Federal High Court case of NOSDRA v Pipelines and Products
Marketing Company (PPMC) where the Court ordered PPMC to
pay various fines amounting to N62.5 million Naira
($372,023) for refusing to clean up and remediate oil
96 NOSDRA Act, Section 1997 NOSDRA Act, Section 19(a) (e)
44
spills.98 PPMC failed to report oil spillage at its
system 2A Pipeline at Eko-Amukpe, Delta State and failed
to clean-up the oil spill that occurred in 2009 in Warri,
where 12 communities were impacted and was thus held
liable to compensate. Although the judgment was in favour
of NOSDRA, PPMC has since failed to adhere to the
decision of the case and has appealed the judgment.99 Even
in a situation like this where the court has mandated the
oil spiller to pay compensation, the enforcement of the
judgment is restricted, as NOSDRA cannot impose a fine on
the oil company for failing to comply.
However, Section 6(2), (3) of the NOSDRA Act
attaches a fine of N500, 000 Naira ($2,976) each day for
a failure of an oil spiller to report a spill within 24
hours after its occurrence and N1000, 000.00 Naira
($5,952) for a failure to clean-up impacted sites. Under
the Act, this section is the only provision that permits
the Agency to impose a fine on the oil spiller. Yet
again, ensuring that oil companies adhere to this
provision poses a difficulty. In the case of NOSDRA V
98 NOSDRA v PPMC [2012]99 The Appeal will take place on the 6th of November, 2014
45
SEEPCO, the oil Company, SEEPCO, was given a penalty fine
of N68, 000,000.00 Naira ($404,761) for failing to report
an oil spill that continued for 136 days in Warri, Delta
State in accordance with Section 6(2) of the NOSDRA
Act.100 However, the oil company has refused to pay the
fine and insists that it has carried out the clean-up and
remediation process of the impacted sites. Thus, the
enforcement capacities of the regulatory agencies are
weakened by the failure of the oil spillers to comply and
oil giants like Shell continue to operate and cause
pollution with impunity.101 Furthermore, it has been
argued that the fines stated in Section 6 (2) are nothing
but token sums to giant oil companies and have little
effect as deterrence tools. The token fines provided in
Section 6(2) are subject to exploitation by the big oil
giants and is not in correspondence with the long-term
damage done to the environment due to the oil spillage.102
In 2012, An Amendment Bill was proposed to the
National Assembly to strengthen the present NOSDRA Act
100 NOSDRA v Sterling Oil Exploration and Energy Production Company Limited [2012], FHC/ASB/CS15/12101 “Shell Spills Worst in a Decade, Says Nigerian Regulator”, platformlondon, (2011)102 ibid
46
2006.103 The Bill aims to strengthen the institutional and
regulatory powers of NOSDRA to enable them actively
manage oil spills. The bill also proposes for the
inclusion of a new section, 8,9,10 and 11, which would
deal extensively with the liabilities of oil spillers.
For instance, the proposed section 8 (1) states that
parties responsible for oil spill with are liable to pay
N50, 000 Naira ($297.61) per barrel for a tank vessel and
for a spill incident caused by an onshore facility or a
deep-water port, N15 million Naira ($89,285.71) would
apply. In addition, in contrast to the present provision
of section 6(2) that requires the oil spiller to pay
N500, 000 Naira ($2,976) per day for failing to report an
oil spill, the proposed amendment Bill increases this to
N10, 000,000 Naira ($59523.81) per day.104 It has been
advocated by NOSDRA that this amendment will enable it
effectively perform its duties and would provide heavier
sanctions for oil spillers thus deterring them from such
oil pollution in the future. However, this amendment bill
has been criticised by oil companies operating in the
103 Federal Republic of Nigeria Senate, National Oil Spill Detection and Response Agency (Amendment) Bill (2012)104 ibid, section 8
47
country because it imposes fines on the companies even in
the case of incidents beyond their control like oil theft
and sabotage.105 The oil firms further argue that the bill
appeared to be a ploy by the federal government to
transfer the funding of NOSDRA to the oil companies by
imposing such heavy fines and suggested that “ fair and
reasonable” fines be calculated through a transparent
process with evidence of oil spills caused by IOCs and
not a total round figure based on guess work. It is
evident that the definition of fair and reasonable varies
between NOSDRA and the IOCs and it would be difficult to
implement such sanctions without either party remaining
unsatisfied. Presently, the NOSDRA Act 2006 applies, as
the government is yet to enact the legislation.
Another crucial matter to consider is the fact that
the Nigerian Government since 1974 has relied heavily on
the oil produced by multinational oil companies as a
source of revenue and is a JV partner with a 55% share of
the interests.106 Due to this JV partnership, the
105 Thisday Live, “IOCs Pick Holes in NOSDRA Amendment Bill”, 12th June2013106 ESSENTIAL ACTION AND GLOBAL EXCHANGE, “OIL FOR NOTHING: MULTINATIONAL CORPORATIONS,ENVIRONMENTAL DESTRUCTION, DEATH AND IMPUNITY IN THE NIGER DELTA” 4 (2000), <
48
government is reluctant to enforce the environmental
regulations curbing the activities of the oil industry as
this may reduce its revenue and even cause the IOCs to
cease operations in Nigeria if such laws significantly
hinder profit maximization.107 With the interest of the
government in oil profits, there is likely to be a lack
of enthusiasm in strict enforcement of environmental
regulations. This puts DPR in a challenging position as
it has the duty to promote the nation’s natural resources
and maximise profits, whilst also implementing the
EGAPSIN regulations. An example of this conflict can be
drawn from the NOSDRA V PPMC case; if this case were
brought before DPR it would have been unable to sue NNPC
as it is charged with regulating the national oil
company. DPR is to ensure compliance and enforce
environmental regulations; however it is crippled from
doing so due to the fusion of functions. Hence, there is
a need for the separation of functions between NNPC and
http://www.essentialaction.org/shell/Final_Report.pdf > accessed on 21st August 2014107 Joshua P. Eaton, ‘The Nigerian Tragedy, Environmental Regulation of Transnational Corporations, and the Human Right to a Healthy Environment’, (1997), 15 B.U. INT’L L.J. pg 261-297
49
DPR as this is a crucial condition for effective oil
sector governance.108
108 Natural Resource Charter 2009
50
CHAPTER 5
THE BLAME GAME- Establishing Responsibility for
Environmental Damage in the Niger Delta
For many years now there has been a blame game
between the Federal Government of Nigeria and the IOCs
operating in the Niger Delta about which party is
responsible and should be held accountable for the
degradation of the environment within the Niger Delta
Region. SPDC as a major operator onshore in the Niger
Delta has had to face various claims and cases made by
different communities, human rights activists and
environmentalists about their continued oil spillage in
the region.109 Nonetheless, according to Mutiu Sunmonu,
the Chairman of Shell Companies in Nigeria, majority of
the oil spills that occur in the region are as a result
of oil theft, sabotage and illegal refining of oil by
criminal gangs.110 It is estimated that an average of
100,000 barrels per day are tapped from the facilities on
the land, swamps and in shallow water in the first
109 see R. Steiner, supra note 67110 Royal Dutch Shell Plc., Shell Sustainability Report 2011
51
quarter of 2013.111These illegal activities are said to
have severe impacts on the environment. In order to
evaluate the damage done to an environment and to
determine its cause, an oil spill response team from the
oil company, DPR, NOSDRA, the relevant State Ministry of
Environment and the police usually carries out a joint
investigation visit (JIV).112 Based on the JIV reports
provided by Shell, it is apparent that oil spillage is a
regular occurrence and most of the oil spills are due to
oil theft.113 According to Shell’s data on oil spills that
occurred in January 2014, out of a total of 13 spills in
the month of January, only one was said to be
operational, leading to the spillage of two barrels of
oil.114 In contrast to this, in the same month of January,
it was recorded that 302 barrels of oil was spilled in
111 Shell in Nigeria: Oil Theft, Sabotage and Spills , accessed at http://s05.static-shell.com/content/dam/shell-new/local/country/nga/downloads/pdf/2014bnotes/spills.pdf 112 Shell Nigeria, Remediation Issues in the Niger Delta http://www.shell.com.ng/environment-society/environment-tpkg/remediation.html 113 Oil Spills in the Niger Delta-Monthly data, accessed at http://www.shell.com.ng/environment-society/environment-tpkg/oil-spills/monthly-data.html 114 The Shell Petroleum Development Company of Nigeria Limited, Joint investigation Report for incident No -1101461, accessed at http://s01.static-shell.com/content/dam/shell-new/local/country/nga/downloads/pdf/oil-spills/1101461-6in-awoba-flowstation-manifold-pipeline-at-awoba-jiv.pdf
52
Bayelsa State and it was said to be as a result of a
third party interference will the oil pipeline, that is
sabotage.115 Other oil companies operating in the Niger
Delta have agreed with Shell’s claim that majority of the
oil spills are due to oil theft and sabotage. According
to the Nigerian AGIP Oil Company, since 2007 there has
been an increase in oil spill events due to sabotage.
Indeed, the period covering 2007 and 2013, witnessed an
escalation in these illegal activities.116 Based on NAOC’s
oil spill data for the month of July, 2014, out of a
total of 19 oil spill incidents, only 4 were due to
either corrosion or equipment failure and the barrels of
oil spilled were insignificant in comparison to those
caused by third party interference.117
115 The Shell Petroleum Development Company of Nigeria, Joint Investigation Report No- 1109543, Accessed at http://s00.static-shell.com/content/dam/shell-new/local/country/nga/downloads/pdf/oil-spills/1109543-okordia-manifold-at-ikarama-okordia-jiv.pdf 116 Eni, NAOC Incident Statistics, Accessed at http://www.eni.com/en_NG/sustainability/environment/response-to-oil-spills/spill-incident-statistics/spill-incident-statistics.shtml 117 ENI, Spill Incident Data- July 2014, accessed at http://www.eni.com/en_NG/sustainability/environment/response-to-oil-spills/spill-incident-data/july-2014.shtml , see NAOC, Joint Investigation Visit Report, Incident Reference number : 2014/LAR/147/553 accessed at http://www.eni.com/en_NG/attachments/sustainability/environment/response-to-oil-spills/spill-incident-data/2014/july/2014_LAR_147_553/JIV-Report-LAR-147-553.pdf
53
In spite of the evidence provided by Shell through
its JIV reports and public annual reports, it has been
strongly contested by some organisations that claim that
Shell, the major multinational oil company in the Niger
Delta is responsible for the majority of oil spills
within the region. In November 2013, Amnesty
International, a human rights activist society published
an 80-page report refuting the facts stated by Shell
attributing the oil spills to sabotage.118 Amnesty
International argues that the JIV reports are prone to
many deficiencies as the oil companies are the primary
investigators of the oil spill sites. It is contended by
the group that the oil investigation process are
initiated by the oil company personnel as opposed to
NOSDRA which has the task of detecting and monitoring oil
spillage.119 It was added that the EGAPSIN provisions
that demand that clean-up commence within 24 hours of the
oil spill are not strictly adhered to by the parties and
118 Amnesty International, Bad Information- Oil Spills investigation in the Niger Delta, November 2013, see also S. Shoraka & O.Okoro “Polluted Promises: How Shell failed to clean up Ogoniland”, accessedat http://platformlondon.org/wp-content/uploads/2014/05/Polluted_Promises_FINAL_low_res.pdf 119 ibid
54
thus this discredits the claims made by Shell. It was
further argued by this organisation that despite the
claims made by Shell that the oil spills are mainly due
to sabotage and oil theft, little has been done by the
Company to protect its infrastructure from tampering and
vandalisation by unknown persons.120 The Amnesty report
makes reference to the Ogoniland oil spill and argues
from a human rights perspective that the oil spillage in
the area has led to the massive degradation of life for
the people who have to drink, cook with and wash in
polluted water.121 It is argued that Shell downplays the
total number of oil spills in order to avoid paying
compensation to the affected communities.
In regards to the oil pollution in Ogoniland, Shell
states that it ceased major operations in the area in
1993 and has produced no oil or gas in Ogoniland since
then. It however takes responsibility for the oil
pollution that occurred during its operation on the land
from the 1950s to the early 1990s.122 In response to the
120 Amnesty International (n116)121 ibid pg 12122 Shell Nigeria, http://www.shell.com.ng/environment-society/our-response/unep-faq.html#textwithimage_7
55
report by UNEP on Ogoniland, Shell states that it
welcomes the report and has taken action to implement the
recommendations made by UNEP on the remediation and
cleanup of the area.123 Furthermore, Shell Nigeria states
that it is committed to remediating and restoring all its
impacted sites regardless of the cause. It however
reiterates the fact that the continued oil theft and
sabotage remain a major limitation to the remediation
process and urges all the stakeholders including the
government and the communities to intensify its efforts
to curb these illegal activities.124
It is well known that not all oil spills are due to
corrosion or failure of technical equipment, illegal
extraction of oil is also a cause of oil spills and the
consequent environmental damage.125 However, under
Nigerian law, Section 11(5) (c) Oil and Pipelines Act
1956, oil companies are required to clean up all oil
123 Shell Nigeria, Our Response – The UNEP Environmental Assessment ofOgoniland, accessed at http://www.shell.com.ng/environment-society/our-response.html 124see also Statement by Shell Nigeria Chairman Mutiu Sunmonu, June 2014 Accessed at http://s00.static-shell.com/content/dam/shell-new/local/country/nga/downloads/pdf/unep/mutiu-statement.pdf 125 UNEP, Environmental Assessment of Ogoniland, Recommendations, Accessed at http://postconflict.unep.ch/publications/OEA/06_ch06_UNEP_OEA.pdf
56
spills regardless of the cause, although it stipulates
that compensation is not available for victims were an
oil spill has been as a result of sabotage or oil
theft.126 Various cases have arisen due to the oil
pollution in the Niger Delta, seeking to establish
liability and compensation for the claimants. One of such
cases is the recent case of Akpan v Royal Dutch Shell and SPDC
where the claimant, Mr Akpan alleged that two oil spills
that occurred from SPDC’s oil well had damaged the
fishponds, which he relied on as his source of
livelihood.127 This case was brought before the District
Court of the Hagues alongside four other similar cases.
It was held by the court in the other cases that SPDC was
not liable for the events that occurred as they were as a
result of sabotage from third parties. However, in the
case of Akpan, SPDC was held liable to pay compensation
to the claimant as it was established that SPDC had
breached the duty of care under the Nigerian tort of
Negligence and that under the Nigerian Oil and Pipelines
126 EGAPSIN 2002 viii, NOSDRA Contigency Plan for the Prevention, Control and Combating of Oil and Hazardous Substance Spills, 2009 Section 4.1, Section 11(5) Oil and Pipelines Act 1956127 Friday Alfred Akpan v Royal Dutch Shell PLC (2013)
57
Act 1956, SPDC was liable for the damages resulting from
the oil spills.128 Thus, in this case, SPDC’s claim that
the oil spills were due to sabotage failed and was held
liable by the court. Although this case was decided in
Dutch Court, it remains essential to establishing
liability of oil companies specifically where the oil
spills occurred due to operational failure or corrosion.
However, the more controversial case of the
Ogoniland oil spillage has been more difficult to
resolve. In 2011, Shell accepted responsibility for two
major oil spills in the Bodo region of Ogoniland, Niger
Delta and it is likely that SPDC will pay $410 Million to
settle the suit brought by the members of Bodo
community.129 Furthermore, SPDC stated that it is
committed to ensuring that remediation of the site takes
place although acknowledging that the cleanup of
Ogoniland will take many years as also stated by UNEP. 130
In response to the UNEP report, the President of Nigeria,
Dr Goodluck Jonathan approved the creation of the
128 Oil and Pipelines Act 1956, Section 11 (5) (c)129 Bodo Community & Others v The Shell Petroleum Development Company of Nigeria Limited [2014] EWHC 958130 Shell Nigeria, accessed at http://www.shell.com.ng/environment-society/our-response/unep-faq.html#textwithimage_3
58
Hydrocarbon Pollution Restoration Project (HYPREP) in
2012.131 HYPREP is established as a specialist unit under
the Federal Ministry of Petroleum Resources and is
focused on implementing the recommendations presented in
the UNEP report on Ogoniland.132 According to HYPREP,
measures are being taken to ensure the restoration of the
environment in Ogoniland. It has also made provision of
portable drinking water for the communities that were
impacted by the oil spills like Nsisioken Ogale.133
However, the Nigerian Government has been criticised for
failing to implement many of the recommendations made,
including the transfer oversight of the EGAPSIN
guidelines from DPR to the Ministry of Environment, the
review of Nigerian law on oil spill clean-up amongst
others.134 Nonetheless, it is argued that progress is
being made and total implementation of the
recommendations cannot be instantaneous. It should be
131 HYPREP http://hyprep.org/ 132 ibid 133 HYPREP Bulletin vol 1, no 1, 2013 accessed at http://hyprep.org/payload?id=a1f3a766-686c-476f-a139-4bebe84b346a 134 Amnesty International, Friends of the Earth & CEHRD, “NO PROGRESS – An Evaluation of the Implementation of UNEP’s Environmental Assessment of Ogoniland, 3 Years On”, accessed at http://www.amnesty.org/fr/library/asset/AFR44/013/2014/en/f38c44ea-5da9-465a-ac8a-9590ab33e9e8/afr440132014en.pdf
59
acknowledged that the government has taken some measures
to implement the recommendations, which include raising
awareness within Ogoniland to improve the knowledge of
the community about environmental and health impacts of
oil contamination.
The Nigerian Government has had its own fair taste
of litigation with regards to oil pollution in the Niger
Delta region. In the case of SERAP v Nigeria, the Economic
Community of West African States Court of Justice
(ECOWAS) passed a judgment that has been considered vital
to the accountability of governments and oil companies
for oil pollution.135 The Court unanimously found the
government responsible for abuses by the oil companies
and it was made clear that government must hold companies
accountable for their actions. The government was also
found to be in breach of Articles 21 and 24 of the
African Charter on Human and People’s Rights.136 It was
held that the government failed to protect the Niger
Delta people from the activities of the oil companies
that have devastated the region. This judgment is crucial
135 SERAP v Nigeria 136 African Charter on Human and People’s Rights
60
as it highlights the need for the Nigerian Government to
hold companies accountable and to ensure strict
enforcement of the laws on oil pollution. However, the
Nigerian Government has failed to implement the decision
of the court.
Due to the lack of urgency in government’s approach
to rectifying the environmental damage and
underdevelopment in the Niger Delta, the security
situation in the region depreciated significantly as the
militant groups resorted to disrupting oil production in
the area and kidnapping both foreigners and Nigerians.
These militant actions are carried out as a means of
gaining the attention of the government and as well as
for obtaining funds from the oil companies and the
government. In the year 2007 there were several reports
of kidnapping in the Niger Delta including the kidnap of
6 foreign oil workers by the Movement for the
Emancipation of the Niger Delta (MEND). Significantly, on
the 1st of May 2007, there was the kidnap of 5 foreign
oil workers at a Shell facility and in June 2007, an
explosion attack was carried out at the home of the
61
Present President of Nigeria, Goodluck Jonathan who was
the then Governor of Bayelsa State. 137 It is alleged that
the violent conflicts in the region are as a result of
the demand for more control by the Niger Deltans over the
oil resources emanating from their States and
physiological frustration borne out of helplessness
within the oil communities.138 In order to address the
issues of environmental degradation, underdevelopment,
conflict and violent activities by the militant groups in
the region, the government embarked on specific measures
that include the creation of the Niger Delta Development
Commission, the implementation of the Amnesty Programme
amongst others. These measures are discussed further
below.
Measures Taken by the Government to Alleviate Situation
in Niger Delta
137 Timeline of Kidnappings and Attacks in the Niger Delta May to June2007 ( World Bank Report , 2006)138 World Bank, “Political Economy of the Petroleum Sector in Nigeria”, Policy Research Working Paper 5779, August 2011.
62
Creation of the Niger Delta Development Commission
(NDDC).
The federal government has not been completely
dormant about the environmental concerns of the Niger
Delta people, as it has made some attempts to ameliorate
the issues. Firstly, in 1993, the Federal Government of
Nigeria created the Oil Mineral Producing Areas
Development Commission (OMPADEC). 139 However, OMPADEC
collapsed due to poor planning leaving several projects
unfinished.140 Nonetheless, in 2000 the Federal Government
established the Niger Delta Development Commission
(NNDC) despite the rejection of the bill to create the
commission by activists in the Niger Delta Region. In
139 General Ibrahim Babangida established this in 1992 and prior to this, the Niger Delta Development Board (NDDB) was created in 1959 following the recommendation of the Pre-independence Willink Commission. However, NDDB’S objectives were short-lived because of the Nigerian Civil War that occurred in 1967.140 Iyoha, F.E, “The Role of Government in creating Sustainable Development in Niger Delta Region” . Paper presented at the Labour Seminar of Law, Order, Security and Sustainable Peace organised by Shell Petroleum Development Company (SPDC) on Friday 8th December, 2008. Furthermore, according to the Niger Delta Development Regional Master Plan , Chapter 2, OMPADEC suffered from lack of focus, inadequate and irregular funding, corruption, excessive political interference, lack of transparency and accountability. Thus, it was no surprise that the Bill was submitted by the then President, Olusegun Obasanjo to the National Assembly in 1999 for the establishment of the NDDC.
63
accordance with Section 58 (a) and 5 of the 1999
Constitution, the National Assembly passed the bill
establishing NDDC. The NDDC is charged with a clear
mandate, which is to facilitate the rapid, even, and
sustainable development of the Niger Delta into a region
that is economically prosperous, socially stable
ecologically regenerative and politically peaceful.141 In
addition, NDDC was also charged with the duty of
overseeing the development and implementation of a
regional master plan that would stand as a reference
point for all the stakeholders in the development of the
Niger Delta region.142 NDDC’s funds are derived from
three main sources; the federal government, the oil
companies and gas-processing companies and an ecological
fund.143 As stipulated in Part V Section 14(2) of the NDDC
Act 2000, the Commission is funded from the 3 % of the
total budget of producing oil companies and gas-
processing companies operating both on-shore and off-141 Federal Republic of Nigeria, Niger Delta Development Commission Act, 2000.142 Niger Delta Regional Development Master Plan , accessed at http://www.nddc.gov.ng/NDRMP%20Chapter%201.pdf 143 P.O.Okumagba & O.P.Okereka, “The politics of oil and the Niger Delta regional development master plan : its workability and the option of political goodwill”, (2013),Global Advanced Research Journal of History, Political Science and International Relations.
64
shore in the Niger Delta area, 15% of the total monthly
statutory allocations granted to member states of the
Commission from the Federation’s Account and 50% of the
monies due to the Commission from the Ecological Fund.144
NDDC since its establishment has been involved in various
projects including the 17 projects in Ikot Abasi, in
Akwa- Ibom State where some have been completed and
others are still ongoing. These projects include the
construction of the Iko Ukpo Inua-Atan Ikpe Road and the
hospital project in Ukpum Ete. 145 Likewise, in Rivers
State it is reported by the NDDC project Monitoring
information System that there have been a total of 177
projects in the state including the construction of Ndoni
Ase Asaga road and bridges.146
By creating a master plan as mandated by the NDDC
Act, NDDC has provided a detailed and extensive framework
to enhance its objectives.147 The United Nations
Development Programme summarised the problems associated
with the previous development strategies in the Niger
144 NDDC Act, 2000 Part V, Section 14(2), 145 NDDC Project Monitoring Infromation System, Accessed at http://www.nddcprojects.com/stateprojects.aspx?sid=4 146 ibid 147 NDDC Act 2000
65
Delta like OMPADEC, and stated that the top-down approach
was one of the greatest flaws of these strategies. It was
noted that the State and Local Governments were reduced
to mere implementing authorities and the beneficiaries of
these development strategies, that is the local people
were not involved both in the conception and
implementation of the programmes.148 However, in the NDDC
master plan this was taken into consideration and NDDC
promised that all the stakeholders including the Federal,
State and Local Governments, the oil industry,
communities and civil society would be involved in all
the projects and programmes of the commission because
this would enable the Commission to meet the needs of the
Niger Delta people and optimize the use of its available
resources.149
Nonetheless, NDDC appears not to have made a
positive impression on the people of the Niger Delta.
Based on commentary made by participants in stakeholder
meetings and focus group discussions, the people believe
that NDDC is an imposition from the Federal Government
148 UNDP 2001 149 NDDC Master Plan, Chapter 2, Pages 109-110. Accessed at http://www.nddc.gov.ng/NDRMP%20Chapter%202.pdf
66
and a top-down approach to development, planning and
implementation.150 This top-down approach is characterised
by the appointment of government officials to run the
board and the exclusion of the locals who are directly
affected.151 However, the Niger Delta Development Master
Plan is a 15-year development roadmap for the region from
2006-2020 to be effected in three phases of 5 years each.
Thus the master plan can still have a significant impact
in the development of the region. It has been recommended
that the Federal Government enact a legislation that will
provide a legal framework to guide all the stakeholders
involved against the erroneous application of the plan.
152
Establishment of the Federal Ministry of Niger Delta
Affairs.
The second step taken by the government was the
creation of the Federal Ministry of the Niger Delta
(MND), which was established by the deceased former
150 United Nations Development programme, Niger Delta Human Development Report, 2006 151ibid. 152 P.O.Okumagba & O.P.Okereka Supra note 101
67
President of Nigeria, Musa Yar’Adua in September 2008.153
One of its core functions is to work side by side with
oil companies operating in the region to ensure
environmental protection and pollution control.154 The
ministry also has the task of fast-tracking development
in the Niger Delta by coordinating the activities of the
government agencies, international partners and
stakeholders.155 According to the Nigerian government, MND
is to be responsible for development projects within the
region including the construction of roads, provision of
electricity and other important services that were
previously provided by other ministries, in order to
quicken the development process in the Niger Delta
region.156 However, the creation of the Ministry was faced
with varying views as some viewed it as a step in the
right direction157 On the other hand, the militant group,
MEND criticised the ministry and considered it to be yet153 Federal Ministry of Niger Delta Affairs Website http://www.mnda.gov.ng/aboutus/ 154 Federal Ministry of Niger Delta Affairs Official Website http://nigerdelta.gov.ng/index.php/the-ministry/our-structure 155 ibid 156 International Crisis Group, “ Nigeria: Seizing the moment in the Niger Delta”, Policy Briefing, 30th April, 2009157 well known Ijaw leader , Chief Edwin Clark viewed the establishment of the ministry as a step in the right direction and evidence of political will by the President.
68
another potential unit for corruption and political
discrimination in the region.158 Based on recent
happenings, it can be concluded that the assertions by
MEND were not far from the truth as charges were raised
against Elder Orubebe, the Minister of the Niger Delta
affairs in 2012. 159 In a petition written to the Chairman
of the Independent Corrupt Practices Commission (ICPC),
the Anti-corruption Network accused the Minister of
corrupt practices that were in breach and total disregard
of the Public Procurement Act 2007. 160 Thus, it is
difficult to see how such a minister can effectively
carry out his duties of developing the Niger Delta if his
actions are corrupt and in conflict with his public
duties.161 If the Ministry fails to produce tangible
results in the Niger Delta, it would regrettably be no
158 “Nigeria militants criticize new Niger Delta Ministry”, Reuters, 11 September 2008159 several allegations were made including a petition from the Executive Chairman of Economic and Financial Crimes Commission on 3rd
June 2013 and the Anti-Corruption Network on 21st November, 2012. 160 Anti-Corruption Network, “ A Petition of Corruption Against Elder Godsway Orubebe, Minister of Niger Delta”, November,2012. Accessed athttp://anti-corruptionnetwork.org/a-petition-of-corruption-against-elder-godsday-orubebe-minister-of-niger-delta/ 161 The Minister has however been relieved of his duties by the President in February 2014 after he indicated his interest in pursuing politics. See http://www.thisdaylive.com/articles/jonathan-resets-his-presidency-sacks-oduah-three-others/171316/
69
different to other institutions that were set up in the
past to foster development of the region. Failure to
perform will intensify the sense of betrayal of the Niger
Delta people by government and could lead to more
militant activities.162
In addition, the effectiveness of the Ministry is in
doubt, as its relationship with the NDDC remains unclear.
The NDDC was mandated to foster rapid and sustainable
development of the Niger Delta into a region that is
economically prosperous, socially stable and politically
peaceful. 163 However, according to the late President
Yar’Ardua, MND was empowered to become the main vehicle
for addressing issues of infrastructural development,
environmental protection and youth empowerment within the
region. Thus, this appears to be a duplication of
functions and could potentially amount to a conflict of
responsibilities between the two different bodies with
similar mandates. Although the government dismisses this
claim and argues that the NDDC will be a subordinate body
162 International Crisis Group, “Nigeria: Seizing the Moment in Niger Delta”, 30th April 2009.163 Niger Delta Development Commission Act no 2 of 1999, NDDC Master Plan, Chapter 2
70
under the ministry, the law establishing this is still
yet to be amended and so both agencies are driving
towards the same goal.
The Niger Delta Amnesty Programme
Another crucial measure taken by the government in
an attempt to tackle the unrest in the Niger Delta caused
mainly by the militants was the granting of unconditional
amnesty to militants in the Niger Delta. The Niger Delta
Amnesty Proclamation was made on the 25th of June 2009
under the administration of the late President, Umaru
Musa Yar’Adua. Between the 6th of August 2009 when the
disarmament commenced and the 4th of October when it
ended, it was recorded that 20,192 militants comprising
20,049 males and 133 females across the nine Niger Delta
States denounced militancy and registered for the amnesty
programme.164 It has been argued that the amnesty
Programme has resulted in a reduction of oil facility
vandalism and attacks on oil workers in the Niger Delta.
164 Niger Delta Amnesty Programme (2009) http://www.mnda.gov.ng/aboutus/history.php
71
165 The post-amnesty programme for the ex-militants
included a monthly payment of 65,000 Naira ($396.20) and
the encampment, training for vocational and technical
skill needed to participate in the oil industry.166 The
Niger Delta Amnesty Programme was designed to build peace
and reconciliation between the militant groups in the
Niger Delta region and the government in order to focus
on the bigger issue, which is that of underdevelopment in
the region.167 If well implemented and structured, the
Amnesty programme in Nigeria could assist the government
in attaining peace in the Niger Delta and consequently
sustainable development. However, a major challenge is
that of poor implementation - the programme has not been
implemented as recommended by the Niger Delta Technical
Committee. In order to yield the best possible outcome,
it would have been more effective to engage in open
negotiations or formal agreements with the militants,
however, the consultations and discussions were at the
165 Ibid 166 O.O.Oluwaniyi ‘Post-Amnesty Programme in the Niger Delta: Challenges and Prospects’ (2011) Conflict Trends 167 S.O.Ogege, “Amnesty Initiative and the Dillemma of Sustainable Development in the Niger Delta Region of Nigeria”, Journal of Sustainable Development , (2011) vol 4(4).pg 250
72
highest levels of federal government, involving the Niger
Delta elders and top government officials of the region
negotiating with the militants’ commanders.168 This top-
down approach is a major challenge to the amnesty
programme as the militants involved feel neglected and
sidelined by the government. This same top-down approach
was used in running OMPADEC, which preceded the present
NDDC and consequently led to its failure and collapse. In
order to be effective, the militants need to be consulted
and involved in the implementation process. Therefore,
there is the need for a bottom-up approach, which would
foster accountability and public participation by the
stakeholders including the militants, youth organisations
and the civil society.169
168 C.Obi & S.A.Rustad, Oil and Insurgency in the Niger Delta, ( Zed Books, 2011)169 ibid
73
CHAPTER 6 – THE WAY FORWARD
Environmental matters in Nigeria are generally given
a low political and financial priority as the nation is
deemed to have more pressing concerns like the provision
of food, adequate housing, and security, healthcare
amongst others. 170 With the present happenings in the
170 K.Kalley, “Nigeria Emerges as Africa’s largest Economy: What next”, (2014) IHS Quarterly, Q3.
74
nation, including insurgency attacks by the terrorist
group, Boko Haram and health concerns in West Africa,
including Nigeria, the delay in addressing the
environmental issues in the Niger Delta to an extent is
understandable.171 However, environmental issues cannot be
neglected as these concerns are intrinsically tied with
the basic survival needs of the people who need clean
water to drink, cook and uncontaminated soil and rivers
to sustain their livelihoods. The federal government and
the IOCs must put an end to the apportioning of blame and
transfer of responsibility for the environmental
degradation in the Niger Delta and focus on implementing
practical and lasting solutions to improve the
environmental and socio-economic standards of life in the
Niger Delta region.
Drawing on the discussions of the applicable
legislations to oil pollution in the oil and gas
industry, it is apparent that the environmental issues
that the Niger Delta is plagued with are not due to the
171 Farouk Chothia, ‘Who are Nigeria’s Boko Haram Islamists?’, BBC News ( BBC Africa, 20 May 2014) < http://www.bbc.co.uk/news/world-africa-1380950 > accessed 20 August 2014
75
lack of laws but rather to the incapacity of the
regulatory agencies to effectively implement the laws.
Although the oil companies adhere to the laws, this seems
to be done on their own timings. Thus, it is advanced
that implementing the NOSDRA amendment bill that provides
for penalties for a failure to comply with the
regulations would strengthen the agency and give it the
power to hold all offenders of the act liable for their
actions. Likewise, the ‘polluter pays’ principle should
explicitly be stated in the amended Act, thus making the
defaulter responsible for the cost of environmental
degradation. The polluter pays principle can take the
form of a tax collected by the government and imposed per
unit of pollution discharged into the air or water. This
principle has been welcomed amongst the European Union
community and is endorsed in the EU Directive on
environmental liability.172 Also, on an international
level the polluter pays principle is at the core of the
Kyoto protocol. Although this protocol is focused on gas
emissions, a similar provision in regards to oil
pollution can be implemented in Nigerian law. It is very172 EU Directive on Environmental Liability, 2004/35/EC
76
likely that the imposition of the polluter pays principle
on oil spillers would deter them from oil pollution and
serve as an incentive for environmental friendly
behaviour. Also, the principle is likely to succeed as
oil polluters would rather comply with the laid down
regulations rather than incur costs that can be avoided
by simply complying with the law.
Solving the issue of Oil Theft.
From the issues discussed in this paper, it can be
concluded that oil theft and sabotage is a major cause of
oil spillage in the region and a concern for both the
government and oil companies. Therefore measures must be
taken to address the issue of oil theft.173 One of the
ways in which oil theft can be reduced is by Nigeria
refining its crude oil. Although the country has four oil
refineries located in Port Harcourt, Warri and Kaduna,
these refineries operate below capacity because of
operational failures, fire and sabotage mainly on the oil
pipelines feeding the refineries.174 The constant influx
of vessels importing refined fuel in Nigeria, as well as
173 Shell Sustainability Report, 2011. Pages 18-21174 U.S Energy Information Administration, supra note 194
77
exporting crude oil has encouraged oil theft and
bunkering. As a result of this, a huge black-market where
stolen fuel is sold has arisen. 175 Furthermore, there is
the need for the Nigerian Navy to be more empowered to
monitor oil theft, which is mostly carried out on the
high sea. The Nigerian Navy derives its mandate from
Section 1(4) of the Armed Forces Act 1993 which charges
it with the duty of enforcing and assisting in
coordinating the enforcement of custom laws including
anti-bunkering.176 Thus, the Navy has the core mandate of
protecting the Nigerian environment from all types of
illegal activities particularly in relation to crude oil
theft. However, it has been alleged that the Nigerian
Navy has a limited number of units and maritime patrol
platforms capable of sustained operations against pirate
vessels.177 It is essential that the Navy receives support
from the government and all other stakeholders in order
to enable it carry out its duty as stated in the Armed
175 M. Pickin, “Effects of Illegal Oil Bunkering and Piracy in Nigeria”, <http://www.academia.edu/4911647/Effects_of_Illegal_Oil_Bunkering_and_Piracy_in_Nigeria > accessed 30 August, 2014176 Armed Forces Act 1993177 Major Rogers SW, ‘A Good Investment : US and Nigeria Security Cooperation’, (2009) Naval War College, Newport R.I
78
Forces Act and assist in combatting oil theft which leads
to environmental degradation.178
In the same vein, it is highly important that the
affected communities in the Niger Delta are armed with
information and awareness about the impacts of illegal
oil activities. As identified by the multinational oil
companies, oil theft and sabotage lead to a significant
amount of oil spillage on a daily basis. Thus, the Niger
Delta inhabitants need to be informed about the long-term
impact that these illegal oil activities have on their
environment, health and safety. These activities increase
ground water contamination, destruction of agricultural
lands, fishery and degradation of mangrove forests. Thus,
the government must ensure that all communities concerned
are well informed so as to deter further occurrences of
oil theft. Likewise, youth unemployment in the Niger
Delta must be tackled by the government as young people
in the Niger Delta region result to such militant
activities due to lack of jobs.179 Job creation and
178 Nigerian Navy Website, < http://www.cot.navy.mil.ng/crude-oil-theft#.VApXFLywKTY > accessed August, 2014, see also C.Katsouris & A.Sayne, ‘Nigeria’s Criminal Crude: International Options to Combat the Export of Stolen Oil’, (2013)179 ibid
79
development of the Niger Delta states should be top of
the list for government - it is important that the Niger
Delta people feel the impact of the oil revenues
generated from their region.180 Until the issue of oil
theft is tackled, Nigeria’s potential for increased oil
prosperity and development, particularly in the Niger
Delta will remain hindered.181 It is indeed time to end
the blame game.
Norway as an Exemplary Model
Like Nigeria, Norway is heavily dependent on its oil
wealth, however the key difference between both nations
is that although both rich as a result of their oil
resources, Norway has managed to successfully utilise its
accrued revenues in a manner that promotes sustainability
and protects the long term interest of its people. Norway
has successfully managed to avoid the “oil curse” unlike
other oil-producing nations. Similar to Nigeria, prior to
the discovery of oil, Norway’s economy was largely based180 Will Ross, BBC News, ‘Nigeria’s booming illegal oil refineries’, (BBC News, Niger Delta 26 July 2012) <http://www.bbc.co.uk/news/world-africa-18973637 >accessed 2 September 2014.181 UK Chamber of Shipping, “How the lack of security in the Gulf of Guinea affects the UK’s Economy”, July 2014.
80
on agriculture and fishing, with fishing still remaining
the second largest sector in the Norway after oil and
gas. 182 The Norwegian Government created Statoil in 1972
and it has since grown to become one of Europe’s leading
oil and gas companies.183 The Norwegian State with 67%
ownership interest is the biggest shareholder in
Statoil.184 However, one distinct feature of the Norwegian
Oil sector is that Norway has separated policy,
regulatory and commercial functions in its oil sector
since 1972.185 Thus, there is an independent regulator,
which is the Norwegian Petroleum Directorate (NPD) that
is separate from Statoil and the Ministry of Petroleum
and Energy.186 In sharp contrast to Norway, the oil
industry in Nigeria is faced with lack of transparency,
182 K.Arne “Oil and Fish in Norwegian Waters- Conflict or Coexistence?” Accessed at http://www.fishsec.org/wp-content/uploads/2012/10/Oil-and-fish-in-Norwegian-waters-paper.pdf , See also ExxonMobil, “Coexisting with the Fishing Industry accessed at https://www.exxonmobil.com/Files/PA/Norden/Coexisting_with_Fishing_Industry.pdf 183 184 Statoil, The Norwegian State http://www.statoil.com/en/investorcentre/share/shareholders/pages/stateownership.aspx 21 August 2014185 M.C Thurber et al, ‘Exporting the Norwegian Model: The effect of Administrative design on oil sector performance’, (2011), Journal of Energy Policy186 ibid
81
corruption and inept regulatory enforcement as discussed
in this paper. One of the major causes of the perception
of corruption in Nigeria is the lack of transparency in
the various institutions involved in the oil industry.
According to Transparency International’s Corruption
Index, from 1999 to 2005 Nigeria was constantly ranked
amongst the bottom three most corrupt nations, after
which it’s ranking began to improve. As of 2010, the
Corruption Perception Index report indicated that Nigeria
was 134 out of a total of 178 countries listed.187 Norway
has however managed to enhance transparency due to the
separation of roles between Statoil and the Norwegian
Petroleum Directorate.188 As a result, Statoil is focused
on commercial activities while the NPD regulates and
monitors its activities autonomously. Consequently, for
example, the NOC cannot use its regulatory or policy187 Transparency International, 2010, As of 2012, according to the Transparency International Nigeria is ranked 139 out of 174 countrieson the Transparency International Corruption Perception Index. See Transparency International Corruption Perceptions Index (2012) Accessed at http://www.transparency.org/cpi2012/results . From this index it appears that there is improvement in the level of transparency in the Nigerian government but the improvement is unstable and insufficient. As of 2013, Nigeria is still ranked amongst the top 30 most corrupt nations in the world (see Corruption Perceptions Index 2013, http://www.transparency.org/cpi2013/infographic ) 188 Norad Evaluation Department, ‘Facing the Resource Curse: Norway’s Oil for Development Program’, Report 6/2012
82
powers to protect itself in the event of a failure to
adhere to environmental regulation. Thus, it is suggested
that the Norwegian model of oil sector governance should
be emulated in Nigeria, as making NNPC distinct from DPR
would prevent conflict of interests and foster an
effective governance of the industry. The Nigerian
Government should also take into consideration the
Natural Resource Charter 2010 aimed at helping oil- rich
nations to manage their resource in a way that advances
economic growth and fosters environmental
sustainability.189 Precept 5 of the Charter encourages
national oil companies to be competitive and focused on
commercial operations and avoid carrying out regulatory
functions. This is the only way that the oil governance
sector in Nigeria can be transparent and accountable.
Furthermore, as a guardian of the public interest,
it is important for Nigeria to invest in the future needs
of its people. As oil is a nonrenewable resource, it is
crucial that the revenues derived from oil extraction and
production be invested for the future use of the
189 Natural Resource Charter 2010
83
citizens.190 Oil-rich nations are expected to make
financial investments for the future of their people and
there are many examples of nations that have set up trust
funds to protect themselves from the blow of oil prices
and for the post-oil future.191 For instance, Norway has
invested heavily in a sovereign wealth fund, which is
worth $893 Billion and all derived from oil.192 Based on
the Sovereign Wealth Fund Institute rankings, there is a
huge disparity in assets between Norway, which has over
$800 billion in its Government Pension Fund, and Nigeria
with just 1.4 Billion in its sovereign fund.193 It is
evident that Norway is not keen on the instant benefits190 C.L.Quarterman, “Transparency and Change Management White Paper for Nigeria’s Extractive Industries Transparency Initiative”, OLDWYN INTERNATIONAL STRATEGIES LLC. <http://www.steptoe.com/assets/attachments/1594.pdf > accessed 21 August 2014191 also see the Alaska Permanent Fund Corp, which was created by a constitutional amendment that provides that at least 25% of all mineral lease rentals, royalties. And bonuses received by the state be placed in a permanent fund, <http://www.apfc.org/home/Content/aboutFund/aboutPermFund.cfm > accessed 21 August 2014192 Sovereign Wealth Fund Institute (SWFI), Fund Rankings, http://www.swfinstitute.org/fund-rankings/ 193 ibid Based on calculations made by the Sovereign Wealth Fund Institute, if the amount of $1.4 Billion was to be shared to the all174.5 million Nigerians, each person will receive $7.74. Meanwhile, in Norway, the entire population of 5.06 million will receive $176,482 each. Although the Norwegian fund was set up in 1990, this is not a legitimate excuse as Kazakhstan, which set up its fund the same year as Nigeria (2012) has $2 billion worth of assets. Nigeria is also ranked above Kazakhstan as it has over 7,000 millions of barrels in proven reserves. Also, Nigeria is an OPEC member.
84
and profits that can be gained from its oil resources but
is rather more concerned about the long–term investment
of the nation’s oil funds.194 Norway is a testimony of how
surplus oil wealth can be managed and Nigeria as an oil-
producing nation can look up to Norway as a model nation
in regards to oil wealth management. It is suggested that
Nigeria adheres strictly to the Santiago principles
established by the International Group of Sovereign
Wealth Funds and the International Monetary fund (IMF).195
Though voluntary, the Santiago principles ensure that
sovereign wealth funds bring economic and financial
benefits to the concerned countries.196 It is hoped that
the Sovereign Wealth Fund operation in Nigeria would
encourage transparency, which would help gain the trust
of Nigerians and other stakeholders.
194 Norway has invested its oil and gas funds in a giant sovereign wealth fund which is worth about $800 billion and presently owns 1% of the entire world’s stocks.195International Working Group of Sovereign Wealth Funds, (2008), Sovereign Wealth Funds, Generally Accepted Principles and Practices. “Santiago Principles”, October 2008. Note that the Santiago principles were considered in creating the Nigerian Sovereign Investment Authority Act, 2011. See also, SWF Issue Paper “Examining the issues of Sovereign Wealth Funds”, 2012196 E.K.Agbabaeze & I.O.Onwuka, “Sovereign Wealth Fund- A Paradigm Shift for Nigeria”, , vol 2(1), 2014. Sky Journal of Business Administration and Management ,pg 001-010
85
Conclusion
In conclusion, as a result of the onshore oil
activities of oil companies prominently carried out in
the Niger Delta, the region has suffered great
environmental degradation, in form of oil spillage,
groundwater contamination and consequently this has led
to the loss of livelihood and adverse health impacts on
the Niger Delta people. Although rich in oil resources,
the economical underdevelopment and poverty prominent in
the region does not attest to its oil wealth. In order to
remedy the environmental damage done to the region, it is
important that the regulatory institutions are empowered
to enforce the legislation. NOSDRA being the lead agency
for oil spill detection and response needs to be given
the right armour to effectively manage and regulate the
oil giants operating in the country. Also it is highly
paramount that the polluter pays principle is given due
weight in the amended Act as this can serve as a major
deterrent for non-compliant behaviour amongst oil
companies. Thus it is strongly proposed that the
amendment bill be given assent, as this is a major means
86
by which the agency can achieve its objective of
sustaining a zero-tolerance for oil spill incidents
within Nigeria. Furthermore, it is suggested that the
Norwegian model of oil governance be emulated and
considered as an exemplary model of an oil rich nation
that has avoided the oil curse commonly associated with
resourceful nations. The Department of Petroleum
Resources must be separated from the national oil company
to enable it function autonomously as a regulator of
NNPC.
Additionally, the government and the oil companies
must forget the blame game and duly address the issue of
oil theft that causes extreme environmental damage. The
Niger Delta host communities must be enlightened about
the adverse effects of sabotage on the environment as it
is a major cause of oil pollution and causes the
government to lose revenue. More so, the long-term effect
of oil theft on the environment and the economy surely
surpasses the short-term gains derived from it.
Furthermore, Government should also focus on the
creation of jobs for the youths in the Niger Delta as
87
this can reduce oil theft in the region. It is paramount
that the Niger Delta people begin to benefit from the oil
resources that Nigeria has been blessed with, this is the
only way that the region can develop. A failure to
address the issue of environmental degradation and
underdevelopment in the region amounts to a failure of
governance in Nigeria and this is an undesired outcome.
Nigeria must disassociate itself from the resource curse
and advance towards sustainable development by moving
beyond the blame game.
88
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