Introduction
After years of Military dietatorship1 which witnessed monumental profligacy
and widespread corruption in the polity, Nigerian heaved a sign of relief when
the 1999 Constitution2 ushered
in a democratically elected government on the 29th day of May, 19993
Sooner the administration came to
power than the littoral state or the states with rich mineral deposits
commenced their agitation for the expropriation of such mineral and mineral
deposits. This can be best described as
the demand for resource control by the lifforal state. The concept of resource
control denotes the control of the gift or nature or natural resources.
Mineral and mineral deposits are not
in the direct control of the coastal states. The control and regulation of how
it will be expropriated are under the direct supervision of the of the Federal
Government4. The Federal government grants oil
prospecting license to oil companies to explore mineral and mineral deposits
for term of years. The Ministry of petroleum resources is responsible for the
granting of these license and lease to oil companies.
It should be noted that compensation
for these expropriation by the Federal Government to the States endowed with
these Mineral and mineral deposited are not adequate in that estimation5
As a result of this, the oil producing state became “masters of their
faith by joining forces to press for resource control. The demand resulted to
legal battle as seen in the celebrated case of AG of Federation VAG of Abia
State & 35 ors6.
This case which was instituted in
the supreme which has the original jurisdiction as regards the interpretation
of the provisions of a legislation was resolved in favour of the Federal
Government. This is because section 44 93) of the 1999 constitution (as amend)
is very clear on this area of law not minding the provision of the Land Use Act7. This decision has not deserved these
states endowed with mineral and mineral deposits from further sustaining the
tempo and pressure in their demand for
the control of their resources.
Reasons for Expropriation of Mineral and
Solid Mineral Deposits.
There have been structures from some
quarters that the fundamental idea behind the agitation for resource control by
the state with natural enchowment is characterized by avarice and
dissatisfaction with the formula for Revenue Mobilization and Fiscal policy of
the Federal government. But upon a critical view of the situation, it goes
beyond that. The factors responsible for its demand are as follows.
The current 1999 Nigerian
constitution, section 44(3) affirms the Federal Government’s proprietorship and
control of all Minerals, mineral oil and natural gas in, under or upon any land
in Nigeria, its territorial waters, and exclusive economic zone. All such
minerals, oil and gas shall vest in the government of the Federation and shall
be managed in such manner as may be prescribed by the National Assembly8. The essence of this provision by the
constitutions to protect and promote national interest. Quite often, the
government as a controller and regulator may wish to separate some minerals
from the general classifications for special reasons, such as projection of
National interest. Within this category are fuels like coal, ignite and thorium9. This is so because if the
expropriation of mineral and solid mineral deposits is granted to the individuals
or sate government as the case may be there will be inequitable distribution of
the proceeds of from such exploration.
Equitable
Distribution
Another reason for the expropriation
of Minerals and solid minerals deposits by the Federal Government is for
equitable distribution of the Natural resources. The 1999 Constitution10 sets out the base guidelines for the
inter governmental sharing of the majorly collected revenue form minerals and
solid deposits in Nigeria. It provides for the payment of the revenues in a
federation Account, which is to be allocated, according an Act of the National
Assembly11 based on the
recommendation of the Revenue Mobilization Allocation and Fiscal Commission
(RM-AFC. Any such Act, according to the constitution. Shall take into account
the allocation principle of population, equality of states, internal revenue
generation, Land mass, terrain, as well as population density,12 while the principle of derivation
shall be constantly reflected in any approved formula as being not less than
thirteen (13) percent of the revenue accruing to the Federal Account form any
natural resources”13.
Derivation revenues are set aside before eligible remaining revenues are
distributed form the Federal Account.
Currently, revenues in the
Federation account are distributed in the proportion of 48.50 percent to the
central government, 26.72 percent to states, 20.60 percent to localities and
4.18 to centrally controlled special funds14.
The Federation Account revenues devolved to the sub-national governments are
shared among the states and among the localities on the basis of the following
indices and percentage weights. Equality (equal shares to each state or
locality) 40 percent. Pixilation 30 percent social development need 1 percent,
land mass and terroum 1 percent; and internal revenue generation effort 10
percent. This aside form the derivation rule, which allocates 13% of natural
resources revenue to exclusively on a derivation or constituent unit- of-origin
basis. All these constitutional and statutory provisions are geared towards an
equitable distribution of revenue accruing from the exportation of minerals and
solid mineral deposits by the Federal government. These constitutional and
statutory provisions notwithstanding. Federal revenue sharing has remained one
of the most intractable and controversial issues in Nigeria.
Political
and Economic reasons.
For political and administrative
expediency, Nigeria is divided in geo-political zones.15 The south/South geo-political constitutes the
states that produce oil in large quantity in Nigeria. If one can take the
benefit of events antecedent, this region has no voice in our in national
political discourse in spite of the obvious fact that the country economy is
sustained by what is obtained din this region. Even when they have a voice in
our national political discourse, such discussion for resource control will be
futile. This is because the constitution is supreme and has provided that
ownership all the minerals in Nigeria belong to the Federal Government17 As a result of this, this
geo-political zone has been calling on other geo-political zones to give them
the produce the next president or Nigeria. According and them, once the
political block is broken, economic emancipation and the control of their
resource is realizable. Sadly enough even if the post of president in given to
this area, as is the case now, the constitution which is the highest law of the
land must be amended in this area.
It should also be noted that the power
of the Federal government over the exploration of mineral deposits in Nigeria
is to ensure that each geo-political zone get what is due to it. This is so
because, there will inequity in the distribution (politically) if it is left in
the hands of geo political zone in Nigeria.
From the economic perspective one
can take the benefit of hind sight.
Precisely, before oil was discovered in Nigeria, the main stay of national economy
were cash crops like groundnuts from the Northern part of the country, cocoa
and Kolanuts from the western part of the country, cocoa and kolanuts from the
western part of the country and palm oil from the East.
The business of producing these
agricultural produced were to a reasonable extent Laissez-faire.18
except to the extent that the Federal Government then imposed taxes on
them. It must be borne in mind that within this period, no state or states
agitated for the control of this agricultural product. Secondarily, the
government purchased these products form the producers and export them.
Individuals as well had the right export. The business was regulated by the
Nigeria Agricultural produce Board. The Federal Government realized little form
these agricultural products. Then our national economy was shored up by aids,
grants and technical assistance from advanced society. This is because, the
Federal Government declined interest in the management of these agricultural
crops.
The, these agricultural business
thieved especially the palm produce which was regulated by the Nigeria Palm
produce Board.19 the United African
Company (UAC) was then a trading concern. It ventured into burring and selling
the produce. It bought at relatively price and at times paid supplement liers
of palm produce peanuts, which mostly resulted in frietion and legal action as
can be seen in the case of Edet Akpan Afia v. United African Company (UDC) Ltd20.
It should be noted that there was no
time the Federal Government had monopoly of those agricultural products. The
reason is without contradiction, the revenue that accrued there from was
Minimal compared to what we get from oil and other minerals and solid pleposits
now. How ever, with the discovery of oil and other natural resources, the
Federal Government took over the control and expropriated of the oil sector.
The reason is not far fetched, as leaving such in the lands of the endowed
state will amount to negligence of other states that are not richly endowed
with oil and other mineral deposits.
The must have been reason why the
constitution in its wisdom enthrusted the management and control of Minerals
and solid mineral deposits in Nigeria in the hands of the Federal Government.
Economically, Nigeria is a
capitalist-welfare state, as opposed to a purely capitalist or purely welfares
state. As a characteristic of this economic arrangement, certain aspects of the
economy is the exclusive preserve of the Federal Government21. The land in any state of the
Federation is by law and as enshrined in the Land use Act22 and, entrenched in the Nigerian
Constitution24 belongs to the Nigerian
people and is only held in trust by the State governments. Any natural
resource, therefore, found within the geographical boundary of Nigeria belongs
to the Nigeria people as a whole, since sovereignty. Over these lands and their
Mineral resources belongs to the Nigerian people.25 Prof. Yadudu has cited several
examples in the World with this type of arrangement.26
In a pure capitalist state, such as United state, however, individuals
or business may prospect for mineral deposits on the Lands they owned anywhere
in the country and sell whatever they obtained from their labour as their land
belongs to the owner not the government. The state and Federal Government may
levy taxes on the business, but they do not own the mineral deposits or control
those resource. This is the distinction that those clamoring for the so called
resource control failed to appreciate. It is totally illogical to compare what
is wrought by the land to that which nature has provided this, then, mean that
the derivation which those so-called oil producing states have been receiving
is illegal and extortionist. Nevertheless, nothing stops the federal Government
from selling of the NNPC, and granting who has Oil Company to prospect for soil
anywhere. There would then be no derivation accruing to anyone, including the
government, or the so-called oil producing states.
Environmental facts/reasons
Another striking point that gave
rise to the control of mineral resource by the federal Government is the tendency
of devastation and neglect of the environment in which inhabitant of the oil
rich communities live. This is so because if the control of these mineral
resources is enthused in the lands of these oil producing states, the above
will definitely be the case. This effect of oil companies on oil communities
will be discussed under the environmental impact assessment of oil exploration.
There have been conscious government
afford to custion the effect of oil exploration activities in this region and
giving meaning to the lives of the people history there. For instance, one time
or the other, there have been instated developmental institution like the oil
mineral producing areas development commission (OMPADEC) to bring development
in this region and also to bring succoker to the people in the event
environmental degradation. But most unfortunately the agency became a conduit
pipe to dram the fund mean for development.
The death of (OMPADEC) could be
attributed to the appointment of its chairman and other key member of the
organization. This is so because some of these persons did not come form the
oil producing states of the Federation. The objective of the institution was
not achieved contracts were awarded to relations and friends of those at the
helm of affairs. Contracts were inflated thereby diverting funds mean for
development into private pockets. Also, the account of the institution was not
audited.
From the forgoing, it should be
noted that if establishment of OMPADEC could not help in taking care of the
problem caused by exploration of mineral oil, what then will happen if such
exercise is left in the hands of state on the sole ground that she is richly
endowed with mineral oil.
Notwithstanding the reason given for
the control of the oil sector by the Federal Government, the social imbalance
in Nigeria is not limited to environmental neglect alone, it affects various
apheres of national development. Some of the most glaring is the inadequate
attention the Federal Government gives to agricultural development, education
and employment27. while some oil
companies destroy the fishing and farming areas of Nigeria Delta,
desertification is eroding the destroying significant size of arable lands in
the far North and south of the country. And if appears the Federal Government
is not doing any thing to help matters in these region even when 85% of
national income come from oil and mineral oil.
Environmental
Impact Assessment of oil Exploration
“Partnering puts consultation into a new light. It
converts consultation into dialogue, it affirms equally between the partners,
it identifies share goals, deepen co-operation, creates a sense of mutual
benefit and mutual respect, generates willingness to pool resources and reduces
risk. At the end of the process we are all winer”.28
One of the grates scourges of oil production is spillage. Over
400 cases of oil spillages are recorded annually according to Chief Mike A.A.
Ozek home29 in a paper he presented
at the international conference on Nigeria Delta at Uyo, Akwa Ibom State from
23rd to 25th November, 2000. This according to him emits
over 2,3000 cubic metres of oil. These include minor spoilage, blow outs from
oil wells and evaporation effects consequent upon the very light nature of
Nigerian crude oil. He further stated that in 1978, a major oil spoilage was
recorded at shell Opukoship flow station close to the village of Obolobo in
Delta state. This forced the entire members of the village to relocate to new
sites.
As part of its operations, in the
Nigeria delta shell petroleum Development Company of Nigeria ltd (SPDC) under
takes approximately 30 Environmental Impact Assessment (EIA) studies each year.
These studies are intended to assess the way in which various proposed
projects, such as pipelines, flow stations, rehabilitation or closure of
existing facilities, new wells etc, might impact upon the surrounding
environment.
The case of Farrah v. Shell
Petroleum Development Company30
highlights one of the greatest menace which oil producing communities, suffer from
oil spillage and pollution which have become a major occurrence in the lifford
sates, scorching and rain-coating the earth surface and making fertile farm
lands impotent. It should he noted that this, menace has continued till the
present day and this has made the states with mineral oil deposits to continue
to clamour for resource control.
Since the issuance of environmental
guidelines and standards for the petroleum Industry in 1991, over 200
pre-development environmental Impact Assessment and post-development
environment Evaluation studies have been carried out by oil and Gas operators.31This is in compliance with the relevant
part of the environmental guidelines and standards and other
legal/administrative framework governing Environmental Impact assessment in
Nigeria. Thus, Environmental Impact Assessment has become a standard practice
in environmental and project planning on some major exploration and project
development activities. However, our experiences in Nigeria suggest that not
much is achieved in terms of environmental management despite the increase in
the number of environmental Impact assessment studies being carried out in the
sector under review.
Despite the long period of oil and
gas activities in Nigeria, which stated since 1908, it was not until 1991 that
environmental considerations, though the conduct of Environmental Impact
assessment, become part of the basis for decision making on acceptability and
sustainability of new project in the oil and mineral oil industries. This was as
a result of the issuance of Environmental guidelines and standards for the
above industries in Nigeria. Prior to 1991 less ten environmental studies
reports including two pre-project environmental impacts assessment and five
post impacts assessment reports as a result of oil spill and blow out incidents
were carried out.32 By
1991, however, awareness on the need of Environmental impact assessment for
major exploration project became gradually entrenched. Consequently, over 200
pre-development and post-development environmental assessment studies were
carried out in the Nigeria oil and gas industry alone between 1991 to date. In
addition to this, over 200 pre-drilling and post drilling seabed survey reports
were also carried out by operators. Unfortunately, despite the upsurge in the
Environmental Impact assessment activities, the primary objectives of carrying
out the Environmental Impact Assessments are hardly achieved. This is because,
the most important aspect of the Environmental Management plans (EMP) in which
the impact preventive, mitigative and monitoring measures were proposed, were
seldom implemented by the operators thus making the entire environmental Impact
assessment exercise a worthless and wasteful affair. In fact, Environmental
Impact assessment reports were, until 2000, merely shelve documents with very
little or no political will and budget to implement same. The ultimate aim of
the operators is just to satisfy regulatory provisions especially for the abstention
of environmental permits.
Pollution
from oil spillage and resource by
oil spillage.
Comprising over 70% of the Earth
Surface, water is undoubtedly the most precious natural resource that exists on
our planet. With the seemingly invaluable compound comprised of hydrogen and
oxygen, life on earth would be non-existent. It is essential for everything on our planet to grow and prosper. Although
we as humans recognize this fact, we disregard it by polluting our rivers,
lakes and oceans. Subsequently, we are shortly but surely harming our planet to
the point where organisms are dying at a vary alarming rate.
In addition to innocent organisms
dying off, our drinking water has become greatly affect as is our ability to
use water for recreational purpose. In order to combat water pollution by oil,
we must understand the problems and become part of the solution.
One can say uncontrovertibly that
the area of pollution has impact more on the environment of the coastal states.
Pollution and spillage have combined to destroy aquatic life, vegetation and
generally render their environment usage for human habitation.
According, to Whikipedia, the free
encydopedia, pollution is the introduction of containments into the natural
environment that cause adverse change.33
It can take the form of chemical substance or energy, such as noise heat or
light.
The organization for Economic
co-operation and Development (OECD) in its definition which was adopted by
member states in 1974 defined pollution as:
“the introduction by man directly or indirectly of
substance or energy into the environment resulting in deleterious effects of
such a nature as to endanger human health, harm and impair or interfere with
the amenities of life”.34
From
the above definition, pollution any substance which when introduce by man
either directly or indirectly will have adverse effect on the environment.
In the case of Chief Peter Onyoh v.
Shell B. P.35, the action was founded
on pollution. The claim was 150,000 for fair and adequate compensation for
damages done to the plaintiff’s fishing lakes, streams, ponds, farmlands and
economic tress etc. for causing the defendants crude oil gas and or chemicals
to escape form their pipes under their occupation and control and for making
the eater therein unstable for drinking and agricultural purpose caused by the
negligence and or nuisance of the defendants. It was further alleged that it
was an act of pollution, spillage and nuisance.
The nature of the operation of oil
companies and the manner of their handling of operational instruments are
sometime snot in accordance with international standards as recommended by the
United Nations. Enacted the environmental Impact assessment Act.36 The Act restricts the public and
private sectors or multinational oil companies from undertaking, embarking or
authorizing any project or activities without prior consideration at the early
stage, their environmental effect. The Act made provision to the effect
that:
“where the extent, nature or location of a proposed
project or activity is such that it is likely to significantly affect the
environment, its environmental impact assessment shall be undertaken in
accordance with the provision of the Act”37
This Act makes it mandatory for
development projects with potential environmental effect to undergo on
environmental impact assessment (EIA) prior to their commencement. The Act
further provides for a mandatory study list, which covers numerous activities
for which an environmental Impact assessment (EIA) study must be undertaken.
Such activities include.
(a) Petroleum exploration
(b) Pipeline installation
(a) Petroleum
Exploration
Oil and gas field development,
construction of off shore pipeline in
excess of 70 kilometer in length, construction of oil and separation processing
and handling and storage facilities, construction of oil refineness,
construction of project depots for the shortage of petrol gas or diesel which
are located within three kilometer of any commercial industries or residential
areas and which have a combined storage capacity of 100,000 barrels or more
require an assessment of its environmental impact.
(b) Pipeline
Installation:
The oil and gas producing companies
as well as the government (in joint venture with the Federal Government)
operate oil and gas pipeline across Niger Delta States. The pipeline have in
recent years turn out to be instrument of destruction, noted for killing
thousands of people on the region some of the pipelines have suffered extensive
corrosion and do not in anyway falling with the environmental standard
stipulated in the pipeline regulations.
Leakages of petroleum product from
these pipelines have been swiftly attributed to sabotage on the part of the
community through which pipelines pass. This act of sabotage is criminal.38 the penalty for which could be as stiff as death as
prescribed in the petroleum production and distribution (Anti Sabotage) Act39 and the special Tribunal
(miscellaneous Offences) Act.40 The
victims of population from oil and gas pipeline are therefore not entitled to
compensation for whatever damage they suffer however extensive, if may be where
population is allegedly caused by sabotage.
The oil pipeline Act41 is full of inequities working
adversely against the oil producing comities whose land or interest in land may
be adversely affected as a result of pipeline operations.42
Nuisance occasional by oil spillage
Oil spillage causes nuisance and
nuisance occasional by oil spillage is fortions Act which can give rise to an
action in damages. Large-scale oil spillage would always constitute a public
nuisance to the various oil producing communities in the state public nuisance
is a crime while probate nuisance is a tort.43
In the former, no individual member of the society or community can institute
on action to abate the nuisance unless where such an individual had suffered
injury appreciably greater in degrees than any suffered by the general public
or members of the community. It is the attorney General of the state that has
power to remedy the situation. This legal idea was given judicial approval in
the cause of Amos v. shell petroleum Development Company Ltd and anor.44
The International and Damage in 1954
as amended in 1962 and 1969 provide international rules and procedure for
determining the question of liability and provide adequate compensation to
persons who suffer damages caused by escape or discharge of oil from ship.45
The criminal code has also
recognized the crime of public nuisance where an act is defined as a crime of
pollution which causes inconveniences or damage to the public in the exercise
of rights common to all members of the communities since oil spills affecting
land or waters usually do damage to the economy and health of a community.46
A part from the statutory provisions
for crime on environment, the common law had developed the concept of public
nuisance to deal with damages such as oil pollution done to the public. This
was considered in the case of Esso petroleum company ltd v. south port
cooperation ltd47.
Finally,
crude oil being a very deletenous substance should be handled with utmost care
it requires. That is why the concept of reasonable forcibility was fully
invoked in the Wagon mound case.48 It
should be noted that the heat generated by gas fairing degrades the environment
and has resulted in the community suffering damages to their properties and
other general inconveniences like their inability to distinguish the day from
the night. The people of Omoku and Ebeocha in Rivers State where ELF and Agip
respectively have there locations are victims of the above circumstances.
1 This period
lasted for over 28 years in Nigeria
2 The 1999
Constitution is the supreme law of land. See section 1 97) (2) & (3) of the
constitution
3 The fourth
republic was ushered in on the 29th may, 1999 with Olesegun Obasanjo
as the president
4 See section
44(3) of the 1999 constitution (as amended)
5 For instance
these states that are naturally endowed are entitled to only 13% of the
proceeds
6 (2002) FWLR (pt
102) special edition
7 See S. 1 of the
Land Use Act Cap L 15 LFN 2004.
8 Subsection 3 of
section 44 of the 1999 constitution (aa mend
9 C. Umoren
“Resource Control: why Northern Governors are Dithery. The punch vol. 17 No 18 Lagos, punch (Nig.) Ltd
Smarch 2001.
10 Section 162 of
the 1999 constitution (as amended)
11 Section 162 (4)
Ibid
12 Section 162 (2)
Ibid
13 This contained
in the proviso to subsection 2 of
section 162 of the 1999 constitution (as amended
14 Conference
on oil and Gas in Federal System March 3-4, 2010
15 They are
six (6) geo-political zone in Nigeria
17 Section
44 (3) Ibis.
18 This is because
the business is not as lucrative as that of oil.
19 The Board
regulated the production and marketing of palm produce bfore the advent of oil
in Nigeria.
20 (1958) SJFSC
vol. iii p. 60
21 This include
the control of natural resources, such as Land and mineral deposits
22 See section 1
of the Land Use Act
24 see 44(3) of
the 1999 constitution (as amended)
25 Section 44(3)
ibid, vests the management of same in the federal government of Nigeria.
26 They include,
united state, Britain, France etc.
27 M.K.
Banuaz –Zubair: Social justice and resource control in Nigeria. A
crisis of legitimacy. http/www.ganyi.com/article 4000/News – visited on
23/07/2012.
28 D. Lapin,
corporate Development Advisor SPDC. Environmental Impact assessment (EID) in
Nigeria Delta.
29 Chief
Mike A.A. Ozekhane is a constitutional lawyer and Human right activist
30 (1995) 3
NWLR (pt 383) page 752
31 G.U. Agha
& D.O. Irechukwu: Environmental Impact assessment and the Nigerian oil
industry. http/www.one petro.org/home/content.visited 24/07/2012.
32 Ibid.
33 Pollution
definition from the Merriam Webster online Dictionary Merriam-Web star-com
Retrieved 24/07/2012.
34 The
organization for Economic co-operation and Development conference held in 1974.
35 (1982) 12
C.A.
144
36
Environmental Impact Assessment Act, Cap E12 Law of the Federation of Nigeria, 2004
37 See
Section 2(1) of the Environmental Impact Assessment Det cap. E12 LFN, 2004.
38 See
section 3 of Miscellaneous provision Act, which provides that it a criminal
offence to willfully damage an oil pipeline or interfere will its installation
39 Cap p.
12, laws of Federation Nigeria, 2004
40 Cap 410,
Laws of the Federation of Nigeria,
2004
41 Oil
pipeline Act cap 07 Laws of the Federation of Nigeria, 2004.
42 See A.G
Vs. P.Y.A Quarries ltd (1957) 2QB 169, See also Interlard trans ltd V. Adediran
(1986) 2 NWLR (pt. 26) pg.78
43 State v.
Wright Depbrum Webstar Gallery ltd 64 Mise 2d 423-427 (N.Y. sup CA 1970).
44 (1974) 4
NCSLR page 486.
45 See the
Navigable water Regulation, 2007, the petroleum (drilling and production
regulation) 1969 and the petroleum Act, No 25 of 2004.
46
47 (1967) No
2 IDC page 617
48 (1966(
No. 2, IAC 617.