CONCLUSION AND RECOMMENDATIONS: ENVIRONMENTAL POLLUTION AND COMPENSATION IN NIGERIA PETROLEUM INDUSTRY



CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
5.1       Observations
            It is not debatable, that the economic status and development of Nigeria is largely depended on the scale of income realized from mineral oil more than any other single commodity. This evidences the need for continued exploration, exploitation and production of oil in the country. The plight of the inhabitants of these areas where the oil is being wined has been told with so many instances and cases in the previous chapter of this work. The facts in, Chief Caippers Enoch & Ors v. SPDC (supra)[1] is an example. This brought to fore the failure of the multinational oil industry to put adequate preventive measures in place to mitigate the effect of oil pollution in Nigeria.

            Consequently, the provisions of the local laws for the control of environmental pollution and hazards in Nigeria are two shallow and poorly implemented. For example section 36 and 37 of FEPA (supra) the meager penalties provided for under this section are not adequate enough to serve as a deviants to such rich oil companies as  Shell, Chevron and other multinational oil companies operating in the country. A part from local laws, one could quickly ask, is there no internationally recognized standard for good oil field practices in the country and if there is, are these multinational oil companies observing of these standards?  The truth is that international standard does exist. And some of these international standards were provided for under the various international conventions and laws discussed in chapter two of this work. For example, Article 6(1) of the International Convention on Oil Pollution Response and Cooperation[2] which provides and I quote,
Each state party must establish a national system for responding promptly and effectively to oil pollution incidents. This system shall includes (a) the designation of the competent national authorities with responsibilities for oil pollution preparedness and responses, the national operational contact point which shall be responsible for the receipt and transmission of oil pollution reports. (b) a national contingency plan for preparedness and response which includes the organizational  relationship of the various body involved whether public or private, taken into accounts the guideline developed by the International Maritime Organization (I.O.M).

It is regrettable that some of these international laws or conventions that are meant to standardize the management, control and response to oil pollution has not been domesticated and put to use in Nigeria inline with the provisions of section 12 of the 1999 Constitution (as amended)[3].
However, it is no longer in doubt that the activities of multinational companies operating for oil in Nigeria, lack every sense of international standards. This prompted the allegation leveled against Shell BP, by some group of Nigerian[4] on double standard[5] (meaning that the standard exhibited in Nigeria by Shell BP is different from their standard of operation in North America). In defense to this allegation at the annual Shell Group meeting held in London in May 1996. The group Chairman John Dennings stated that:
The charge of double standard is mistaken because it based on the notion that there is a single environmental standard, as well as we continue to improve, varying standards are inevitable.

The evidence in support of the fact that the multinational companies operating for oil in Nigeria does not comply to the available international standard in the country is implied in the statement of the Group Managing Director Shell BP C.A.J, Herkstroter, at the parallel annual meeting held in Netherlands, in 1996, where he stated as follows:

That, higher environmental standards could harm local economics, should we apply the higher cost western standards, thus making the operation uncompetitive and deprive the local work force of jobs and the chances of development. Or should we adopt the prevailing legal standards at the site, while having clear plans to improve towards best practices within reasonable time frame?[6]

The statements of the two great minds in the oil industry above, summarizes the true situation of the standards applicable in exploitation of oil and conservation of environmental good in Nigeria.
The effect of non compliance to international standard in Nigeria is one of the evidence of sporadic and continued environmental fouling, through oil spillage and gas flaring within the region of Niger Delta. This evil, is at the detriments of good environmental programmes and sustainable development. While the  victim s’ fates were left at the mercy of prolonged court cases, which some times yield little or nothing positive at all. Depending on the victims ability to prove damage and or cause of action to the satisfaction of the court.[7]
Furthermore, these oil companies often times, take cover in the provisions of the laws that are favorable to them in other to evade liability. For example, such defenses as act of sabotage.[8] It is important to note here that Nigerian judicial system in conjunction with the jurisprudence of other parts of the world, has been so strict in the application of the provisions of section 4(4) of the Oil in Navigable Water, Act[9] which provides that:
it shall be a defense for the occupier of a place on land, who is charged with an offence under the last preceding section improve that the discharge was caused by the act of a person who is in that place without the permission of the occupier.

And the provisions of section 22(1) of FEPA Provided in Chapter Two of this work respectively. In fact, the polluters have succeeded in a good number of cases involving environmental fouling and destruction of means of livelihood against them by the virtue of these defenses.
Hence, the Nigerian Court in Umudje & Anor v SPDC (Nig) Ltd[10]  in a claim for compensation resulting from damage to fish ponds, streams, farmland and economic trees. The court held that the company is not liable since the act was caused by the mischievous act of a third party and there was no negligence on their parts. Similar decision was also reached by the Indian court in Mardraj v Texaco Trinidad Inc[11].Where it was held that
An oil company was not liable for an escape of oil and consequent damage to the crops of neighboring landowners which was caused by an unknown trespasser deliberately drilling a hole in the company’s oil pipelines.

However, these positions of the courts are good but cushion should be taken by the courts with jurisdiction over oil pollution matters in respects to granting of these defenses of sabotage or the act of a third party. This is because, since it has been observed as noted above that these oil companies are not complying with the international standard, they may decide to use this pipelines beyond its required life span, making it prone to damage in any slight contact. And when an action is brought against them as a result of spillage from such incident they will turn around to claim defense of sabotage.
Nevertheless, the issues of the Alternative Dispute Resolution A.D.R, noted in the concluding part of chapter four of this work, is ripped for adoption by the victims of the oil pollution. Considering the fact that prove of damage or cause of action witnessed in the case of San Ikpede v. SPDC[12] may defy the chances of securing adequate and fair compensation to the loss they incurred to oil spill. Similarly, the measurement of the actual loss may be better fixed out side the court. Taken due regard on the fact that the negotiation will be carried out in an open and relax minded atmosphere.

5.2       Recommendations
            The celebration of positive impact of mineral oil in Nigeria, should not quieting the sense of need for sustainable development of the environment, in addition to protecting human lives, and preserving plants and animals species from extinction. The very fact that oil spill cannot be totally avoided in the face of oil exploration, exploitation and production, arose the curiosity of solution. On this note I, recommend as follows;

1.         Courses in Oil and Gas Law should be Introduced in all the Universities in Nigeria.
            The need for further studies and continued research in Oil and Gas Law in Nigeria is quite over ripped. The knowledge for good oil field practices vis-à-vis management and control of oil pollution in the country is most sacrosanct. Hence, urgent introduction of courses of study in Oil and Gas Law, both for degree, masters and PhD programs in all Nigerian universities will be the most appropriate for the stemming of the oil pollution insurgencies in the country, hence using the powerful instrument of research and information.
            However, Technical and managerial knowledge acquired in Oil and Gas Law will  apart from fostering new ideas for good management and control of oil pollution, be used in providing expert advise in oil pollution related matters. More importantly, masters and PhD programs in Oil and Gas laws when offered by Nigerian universities will give opportunities to many who ordinary could not have afforded over-sea’s education, to acquire knowledge necessary for better management and dispensation of oil pollution cases in courts.

2.         Life span for oil pipelines carrying oil in Nigeria
            It is more effectual to prevent the occurrence of oil pollution than remedying the effects of its disaster. One of the ways by which oil pollution could be prevented in Nigeria is by enacting a law, banning the continuing use of worn out oil pipeline without maintenance or replacement by the multinational oil companies operating in the country. The enforcing mechanism of this law should see that the provisions of the law relating to pipeline management including procedure for laying maintenance and replacement are strictly followed. And that no oil pipeline in Nigeria, is used beyond its life span. This is important because, the worn out nature of some of the oil pipeline carrying oil in the country sometimes contribute to its easy damage either by accident or through act of sabotage. Leading to spillage and thereby pollute the environment.
            Furthermore, apart from replacement of the worn out pipelines, there should be a regular maintenance of the oil pipelines. This will go a long way to enhance the durability of the pipelines and keep them in proper shape for efficient carriage of oil.

3.         There should be a law to combat non compliance to international standard on good oil field practice in Nigeria
            It was noted in chapter four of this work that the oil companies operating for oil in Nigeria have over the years, flout with impunity the international required standard for good oil field practices and sometimes with a very flimsy excuses. Therefore to checkmate the purport of this notion and as well drag the concerned oil company to compliance, the legislators should enact a law with stiff penalties for non compliance to international standard in oil operation vis-à-vis oil pollution control and environmental management in Nigeria. The importance of this could be drawn from the fact that weak enforcement procedure has been the bane of most of the international conventions which was the proponents of these provisions. Hence, state legal instrument is sacrosanct to supplement and give virile to the enforcing mechanisms of the conventions.

4.         Emergency Response Action plan should be established with Offices in all the 36 States that make up Nigeria:
            NNPC and the oil companies operating in Nigeria should as a matter of urgency, put in place effective emergency action plan, “fully equipped with all necessary technical facilities necessary to wrestle the sprayed of oil on the land and onto the waters at any event of spill. Thus, this will reduce escalation of oil pollution and mitigate the extent of its damages.
            Similarly, the agency for emergency management and control of oil pollution should be established with an office throughout the 36 states of the federation. This is because oil pollution though more prevalent in the oil producing areas, the occurrence cannot be totally ruled out in other parts of the country. Perhaps, there have been stories of petrol tankers slumped on the way before getting to their various consumers’ destinations. This often results to spillage and sometimes leading to destruction of lives and properties. However, with the immediate intervention of such emergency control agencies, the quantum of loss at the event of such spill could be mitigated.

5.         Compulsory clean-up and periodical Bio-remediation operations should be carried out by the concerned oil company: Pollutant such as oil is capable of rendering permanent damage to the affected sites. For instance, when oil pollution occurs, it sprayed and covers the surface of the water in a very tiny sheet and remains there unless removed. This makes it impossible for Oxygen (O2) to penetrate into the water. This has been explained in detail in the preliminary stage of this work. The effect of this is the death of the marine resources which primarily depended on the available oxygen in the water to exist. On the land however, the oil when spill, continues to sink deep into the soil, causing the roots of the plants growing there to form bobbles and become incapable of absorbing water, thus, leading to the death of the crops and all other economic trees growing therein.
            However, to prevent the occurrence of such consequential damage mentioned above, the oil companies operating in Nigeria should be compelled to respond promptly at any event of oil spill and to carry out clean-up and bio-remediation exercise in accordance with the provisions of National Oil Spill Detection and Responses Agency Act (NOSDRA) 2006.
            Nevertheless, some of the importance of clean-up and Bio-remediation exercise includes but not limited to, healing the affected areas and putting or restoring it back to its original state. Perhaps, it is one of the best measures since it serve as a means of restitution which some of the oil pollution victims sometimes sought in the court. In other words, when the affected water or land is cleaned and properly treated, it will become safe for use again.

6.         Concurrent jurisdiction on oil pollution matters should be conferred on both state High Courts and the Federal High Courts:    
One of the challenges of action on oil pollution causes has been noted to be the issue of jurisdiction. It is obvious that virtually all states in the Federation of Nigeria have State’s High Court but such is not the same when it comes to Federal High Courts. Therefore, for even access to justice for the victims of oil pollution, States High Courts should be empowered by the relevant laws to hear and determine actions in oil pollution matters.
            On the second hand, concurrent jurisdiction on oil pollution matters when conferred on both State High Courts and the Federal High Courts will help to decongest the Federal High Court of over flow of litigations already experiencing by its proceedings.

7.         Relevant provisions of the law should be enacted to put an end to gas flaring in Nigeria:
            Negative effect of gas flaring is beyond bounds as noted in chapter three of this work. Is it the corrosive effect on the steel roofing sheets, which reduce the durability of the roofs of the house, formation of acid rain, or the environmental and health complications. In fact, the debilitating effect of gas flaring is such that could not be tolerated in any healthy environment. Hence the urgent need to put an end to it in Nigeria.
            However, the legislatures should either revived the existing environmental related laws or better still enact new one to make  available, provisions, banning gas flaring in Nigeria.

8.         There should be a Regulatory control on sitting of petrol stations and mechanic work shops in Nigeria:
The fact that no oil pollution when compare its resultant effect could be adjudged small, envisaged the need to put all action which could in one way or the other result to oil pollution in check. If a look is taken around our cities, it is discoverable that most petrol stations is located side by side with residential houses, churches, mosque, schools, markets and indeed other conventional places. This is dangerous because the little drops or spillage of oil at the petrol stations is capable of sparking off fire. And when this happens, the closest spots becomes the victims.
            Mechanics’ work-shops, on the other hand are not encouraging at all to be sited close to an area where the people get their source for water. Because the used or condemned oil spilled at will by the auto spare mechanics could be washed into the water by rain and when the people drink such water, it could result to one form of ill health or the other. On this note, I call on those who are responsible for the enforcement of existing Environmental Impact Assessment Act (EIA) to wake up from their slumber and check the proliferation of petrol stations and mechanics workshops all over the cities in Nigeria. Or alternatively, the Nigerian legislators can by legislation, provide a law with more stiff penalties against those who end at noting than to vitiate the laws guiding environmental issues.

9.         The government of Nigeria through NNPC should organize Regular workshops and sensitization programmes for the people within the oil producing areas:
            Oil pollution as said before is better prevented than managing its effect. The people of Niger Delta if given adequate education and information on prevention and control of oil pollution, the incessant complaint of oil pollution in the region could be reduced. For instance they could be informed on the danger inherent in the act of pipeline brakeage, and more importantly how to respond, whom to call and where to complain to at any event of oil spill in the area. They could be equipped with information skills and equipment for possible evacuation of their fishes at the event of oil spill.

10.       Nigerian people should be Educated on the importance of approaching Alternative Dispute resolution Mechanism (ADR) in seeking compensation for their loss as a result of oil pollution
            Alternative dispute resolution (ADR) as noted in chapter four of this work, in contra distinction to court litigation, give equal access to justice to every body, “Rich or poor alike” less capital intensive, safes  time and discourages enmity. With A.D.R, victims of oil pollution will no longer be denied access to justice on the ground of jurisdiction. With ADR approach, the victims are likely to obtain more valued compensation compare to what is obtainable in court. This is because, the victims in the very relax of their minds would be able to use all the available chances without restriction to measure their losses, simply because they are almost in control of the whole process unlike the court instances where they can only speak through their counsels or sometimes through the judge.
            However, since the venue will be decided by the parties, the victims are saved of costs of transport and are encouraged to pursue their cause to a logical conclusion. They can agree or disagree on any decision without incurring any contempt, though depending on the approach adopted.


5.3       Conclusion
            Without missing words, the oil rich Niger Delta Area of Nigeria is indeed a blessing to the country. Perhaps, the exploitation of this natural mineral oil goes with its expectant challenges. However, the pains experienced by the inhabitantsof Niger Delta is however predicted on the effectiveness or otherwise of the management of the said challenges posed by the processes applied in exploitation and exploration of the oil. Thus, the environmental hazard commonly experienced in the Region of Niger Delta as expounded in chapter three of this work is therefore surmountable.
            Consequently, since the major environmental complaints in the Region of Niger Delta had over the years over remained fouling and destruction of environment related substances into the land and waters resulting to the damage, it therefore suffice that such measures as regular clean up exercise and others bioremediation on the land and water is most appropriate. Furthermore, the position of oil and gas in the growing Nigeria in economy has been over stretched in both introductory part and chapter 5.1 of this work and it goes without saying that the appreciability of Nigerian gross net income. However, if this asserted being the true state of things, it will not be out of place for Nigerian government to make the clean up of Niger Delta environment to make the clean up of Niger Delta environment of its programmed agenda.
            Similarly, all the relevant provisions of both local, statutes and international conventions elucidated in chapter two and four of this work has however pointed to the fact that international standard for environmental management is attainable. Wherefore any deviation from the international standard becomes a direct violation of the proviso enabling it. It is in fact disheartening that the existing oil industries operating in the country are very fare from observing the international standard and other environmental ethics as pointed out in chapter four of this work. though the existence of laws in one thing and its enforcement the other, hopes never eluded the victims in this devastating situations. Alternative dispute resolution thoroughly illustrated in chapter four of this work provides for the victims of oil pollution being the [subject matter of this project] among other things in avenue for instituting a direct negotiation with the accused oil from without having to undergo the rigorous processes of litigation. In other words, with A.D.R., access to justice is evenly available, to everyone including the poor victims of oil pollution damage.
            For better environmental management in the Nigeria oil sector and for some other questions arising from the sharp practice of the multinational oil companies operating in the Niger Delta Area and issues relating to the fate of the communal life in Niger Delta recommendations provided in chapter 5.2 of this work has a lead answer.

Bibliography
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[1] The claim in this  case was for compensation for the death of children as a result of the drinking water polluted by an oil spill, damage of farm lands and economic trees and complains from residents of the affected area that fisher collected by them tasted paraffin (Kerosine), thus, indicating the presence of hydrocarbon contamination.
[2] supra P19
[3] Section 12(1) of the Constitution (supra) provides that “No treaty between the federal and any other country shall have the force of law except to the extent which any such treaty has been enacted into law by the National Assembly.
[4] Ref world/The price of oil 2 corporate responsibility and human rights, www.unher.org/reworld/topic,456502searched
[5] Ibid p.4
[6]    www.unher.org/refworl/topic456502/suora).page
[7] In Umudje v. SPDC (supra), the sum of N 100.000.00 was clamed by the victims as fair and reasonable com[ensation for the damage done to the plaintiff’s farm land, fish ponds and economic trees, through wrongfully and partially blocking original channel or water ways and replacing it with access road by the defendants and their agents. The trial court awarded the sum of N14,400.00 as fair & adequate compensation to the plaintiff. However, this decision was quashed on Appeal on the ground that no cause pf action was established. The Supreme Court per Idigbe J.S.C. conceding with the position of the Appellant Court disallowed the financial award made by the trial court.
[8] Section 22(1) of the FEPA (supra).
[9] Supra p.29
[10] [1975] 9-11 SC 155 p.172 – 173S
[11] [1965]15 West Indian Reports (W.I.R) 251.
[12] [1973] M.W.S.J. 61 Pgs 88-89
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