OIL AND THE NIGER DELTA PEOPLE: THE INJUSTICE OF THE LAND USE ACT

 VOL. 9 ARTICLE 14
"All lands and natural resources (including mineral resources) within the Ijaw territory belong to the Ijaw communities and are the basis of our survival…We cease to recognise all undemocratic decrees that rob our peoples/communities of the right to ownership and control of our lives and resources, which were enacted without our participation and consent. These include the Land Use Decree and the Petroleum Decree…"


INTRODUCTION
Oil exploitation in the Niger Delta region of Nigeria began in 1956, after a long search for oil which began in 1906. By 1956 production has reached 5,100 barrels per day (p/d) and the first export to Europe was made that year. At independence in 1960 Nigeria had become self sufficient in crude oil, producing 20,000 barrels p/d. In 1961 production was 46,000 p/d; and with the construction of trans-Niger pipeline in 1965 and the exploitation of off-shore fields, production leaped to 275,000 p/d, and to 420,000 prior to the Nigerian civil war which started in 1967. Although the civil war lasted up to 1970, it does not seem that the difficulties of the war time significantly affected oil production as the million barrel daily mark was passed in 1970 and by 1973 had doubled to 2.06 million p/d.
Before the discovery and exploitation of oil, Nigeria had an agrarian economy. But as the above figures indicate, since its discovery and exploitation oil has been rapidly growing in importance in the Nigerian economy. Available evidence shows that by 1972 oil constituted 83% of Nigerian exports. With regards to revenue, the share of oil in federal government revenue rose from 17% in 1971 to 71% in 1973, and to 86% in 1975. Sources also indicate that this trend has remained ever since. So that by early 1990s, oil revenue accounted for over 90% of Nigeria's foreign exchange receipts. Oil revenue within this period also provided for 70% of budgetary revenues and 25% GDP. In 1998, the minister of finance indicated that the federal government income from sales of its ‘equity in crude oil' was US$7,706 million and from royalty and Petroleum Profits Tax, US$4,288million; "together they made up 88% of the government's foreign exchange earnings for the year 1997". Presently oil is still the mainstay of the Nigerian economy. In its yearly Report and Statement of Account recently published for the year 2000, the Central Bank of Nigeria stated that "oil accounted for N1.59 trillion or 83.5% of the total gross revenue" for the year.
As is the case with other oil-producing countries, the exploitation of oil in Nigeria is carried out under some legislation. The most important oil-related legislation in Nigeria include: the Petroleum Act 1969, Oil pipelines Act 1956, Oil in Navigable Waters Act 1968, Federal Environmental Protection Agency Act 1988, and the Land Use Act 1978. By the Petroleum Act (continuing a colonial policy) the entire property in petroleum (mineral oils) is vested in the state. The result is that the federal government has absolute right and control over oil resources in the country, which is found only in the Niger Delta region of the country. It farms out oil mining rights to oil companies and receives rents and royalties from them. As has been seen above, oil has realised so much money for the Nigerian state over the years.
One unique aspect of Nigerian law can be found in its law of property. Under the laws of most common law countries ‘land' includes mineral oils entrapped in the land. But this is not the case with Nigeria. Section 16 of the Interpretation Act 1964 explicitly excludes mineral oils from the meaning of land. And while oil is vested in the state ownership of land supporting oil remained vested in communities and families until 1978 when the Land Use Act (hereafter LUA) was made. The Act (promulgated as a Decree by a military government) vests all the lands comprised in the territory of a state of the federation in the governor of the state in ‘trust' for all Nigerians. It is significant to note that before the promulgation of the Act oil companies that had obtained mining rights from the federal government approached oil-bearing/land-owning communities for a right of access to the land for its operations. This was a way by which the communities had some sense of participation in oil operations, as they received some compensation for granting access and for any damage to land and any surface rights thereon. It would appear that this sense of participation has been lost since the unity of land rights with oil rights in 1978. Most scholarly works on oil exploitation activities in the Niger Delta have concentrated on the environmental impact of oil exploitation and the under-development of the region despite the huge revenue oil exploitation has yielded to the Nigerian state. There has not been any systematic scholarly analysis of the impact of the LUA on the Niger Delta people. This is the lacunae which this paper attempts to fill. It will be shown that the impact of the LUA on the Niger Delta people raises questions of injustice which themselves could exacerbate an unstable position in the region. But before embarking on the examination of the relevant sections of the Act and its impact on the Niger Delta people, it is useful to briefly consider the issues of ownership of oil and ownership of land supporting oil before the enactment of the LUA. This is the first task we shall undertake here and it will serve as our framework for analysis. From this we shall move to the impact of the LUA on the Niger Delta people. The paper will end with some concluding remarks.
1. BACKGROUND AND CONTEXT
1.1. OWNERSHIP OF OIL IN NIGERIA
The search for and exploitation of oil in Nigeria started in the colonial era. The British colonial authorities regulated these activities through a number of laws. The major oil-related colonial statute was the 1914 Mineral Oils Ordinance which was promulgated to "regulate the right to search for, win and work mineral oils". This law did not make any provision for the ownership of oil. The ownership of oil was later provided for in the Minerals Ordinance 1916; and also in the 1945 Minerals Act which replaced it. Section 3 of this Act (the Act came into force on 25 February 1946) specifically vested mineral oils in the crown, thus:
" The entire property in and control of all mineral oils in, under or upon any lands in Nigeria, or of all rivers, streams and water courses throughout Nigeria is and shall be vested in the crown [state], save in so far as such rights may in any case have been limited by any express grant made before the commencement of this Act."
Some important amendments of the 1914 Ordinance were made in 1925, 1950, and 1959. Under section 2 of the 1925 amendment "mineral oil" was defined as including "bitumen, asphalt and all other bituminous substances" with the exception of coal (which was covered by the 1945 Minerals Act). The 1950 amendment added a new section whereby the submarine areas of Nigeria's territorial waters were brought under the ambit of the Ordinance. The 1959 amendment extended the legislative competence of Nigeria's federal legislature (under the 1959 colonial constitution Nigeria was a federation with a centre and three Regions) to cover the submarine areas of other waters on which the federal legislature may make legislation in future, in matters relating to mines and minerals. This later amendment might have been made in exercise of the right recognised under Art.2 of the Geneva Convention on the Continental Shelf.
The result of all these laws was to vest in the Crown/State the absolute right and control over the colonial state's oil resources, both onshore and offshore. Given the revenue potentials of oil it is hardly surprising that Nigerian nationalists resented these laws. In fact, one of Nigeria's leading nationalist described these laws as "obnoxious". The implication of this, of course, was that it was unjust because it deprived the colonised peoples of the benefit of their "natural property". It is therefore paradoxical that the same persons who had so resented colonial statutes on mineral oils moved to retain the essence of these laws after independence. This was done by a constitutional provision drafted by themselves in 1963 (three years after independence). Section 158(1) of this constitution provided:
"…all property which, immediately before the date of the commencement of this constitution, was held by the crown or by some other body or person (not being an authority of trust for the crown) shall on that date, by virtue of this subsection and without further assurance, vest in the president and be held by him on behalf of or, as the case may be, on the like trust for the benefit of the government of the federation; and all property which immediately before the date aforesaid, was held by an authority of the federation on behalf of or in trust for the crown shall be held by that authority on behalf of, or as the case may be, on the like trusts for the benefit of the government of the federation…"
There is a belief in some quarters that the Nigerian nationalist (Nnamdi Azikiwe) who had denounced colonial statutes on mineral oils made a volte-face on such legislation after independence because he found himself as the ‘inheritor' of the property secured by the statutes. Critics have also suggested that the Nigerian civil war of 1967-70 was a cynical war for the control of oil resources in the Niger Delta (located in the Eastern Region of Nigeria); the war was caused by the attempt of the Eastern Region to secede from Nigeria. Before the war there had been a military coup in 1966 which had ousted elected officers from office; a military/dictatorial government had been established and the 1963 constitution had been suspended. In 1969, in the course of the war, the Federal Military Government (as the usurper regime was styled) promulgated a decree called the Petroleum Decree, by which it re-asserted state ownership of oil resources. Section 1 of this Decree provides as follows:
"(1) The entire ownership and control of all petroleum in, under or upon any lands to which this section applies shall be vested in the state.
(2) This section applies to all lands (including land covered by water) which-
(a)is in Nigeria; or
(b)is under the territorial waters of Nigeria; or
(c)forms part of the continental shelf."
The petroleum Decree was followed in 1978 by the Exclusive Economic Zone Decree. This Decree vests in the federal Republic of Nigeria sovereign and exclusive rights with respect to the exploitation of natural resources (including oil) of the seabed, the subsoil and superjacent waters of the Exclusive Economic Zone (EEZ). The combined effect of this Decree and the Petroleum Decree is enormous. As one scholar has argued, "the provisions of the Petroleum Act [the Decrees were later re-designated as Acts by a civilian government to bring them into conformity with the terminology of a civilian system of government] combined with those of the EEZ Act invest in the federal government a ‘complete' right of ownership over oil resources". This ‘complete' right is ‘securely quaranteed' by section 44(3) of the present constitution of Nigeria, thus:
"Notwithstanding the foregoing provisions of this section [providing against compulsory acquisition of property without the payment of adequate compensation] the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and Exclusive Economic Zone of Nigeria shall vest in the government of the federation and shall be managed in such manner as may be prescribed by the national assembly."
It might have been observed that the above provisions are silent on the issue of ownership of land; yet oil is entrapped in land and cannot be exploited without access to (or  acquisition of) land. This leads us to an inquiry into the ownership of land before the enactment of the LUA and how this affected oil exploitation.
1.2. LAND TENURE BEFORE 1978
Before 1978 Nigeria did not have a uniform land tenure system. In the southern states of the federation, there was a dual system of land tenure, namely: customary land tenure system and land tenure under the received English law (sometimes called statutory land tenure system). The customary land tenure system varied from one community to the other, although some common legal principles are identifiable. In the case of the northern states of Nigeria, there was a system of ‘public ownership' of land under a colonial statute which was retained and re-enacted after independence. The result is that before 1978 Nigeria had a plural land tenure system. A discussion of the ‘statutory' land tenure system and the northern Nigeria ‘public' land ownership system are not relevant to us here; we are here concerned only with the indigenous land tenure system of the people of southern Nigeria where the Niger Delta people are located.
It is beyond dispute that customary land tenure system is based on the native laws and customs of the various peoples of southern Nigeria. Although customs varied from place to place, studies have shown that some common legal principles are discernible. In the locus classicus of Amodu Tijani V. Secretary, Southern Nigeria, the Privy Council stated the basic legal principle of customary land tenure in the following words:
"The next fact which it is important to bear in mind in order to understand the native land law is that the notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village or the family, never to the individual. All the members of the community, the village or family have an equal right to the land, but in every case the Chief or Headman of the community or village, or head of the family, has charge of the land, and in a loose mode of speech is sometimes called the owner. He is to some extent in the position of a trustee, and as such holds the land for the use of the community or family. He has control of it, and any member who wants a piece of it to cultivate or build upon, goes to him for it. But the land still remains the property of the community or family. He cannot make any important disposition of the land without consulting the elders of the community or family, and their consent must in all cases be given before a grant can be made to a stranger."
Although the accuracy of the above statement has been severally challenged by different scholars, it would appear that there is an agreement that the traditional basis of customary land tenure is "common ownership" (in fee simple/absolute title), whether it is within a family or a community. This is one of the distinctive features of indigenous land tenure system. Another distinctive feature lies in the role of management and control entrusted with the Headman of the community or village; nobody, not even a member of the community or family, can make use of any portion of the community/family land in any way whatsoever without the consent of the Headman of the community.
Some scholars claim that before the enactment of the LUA this position was well-respected by everybody, including officers of government, right from the colonial era. So that, with respect to oil operations, although oil resources were vested in the state and the oil-bearing/land-owning communities/families did not participate in farming out the resources to the oil companies, yet the oil prospecting and production companies entered upon the affected lands only after reaching an agreement with the land-owning communities/families on the amount of compensation (for any damage to surface rights- e.g. farm crops or building) and compensation (annual rent for the use of the land in its intrinsic state or other corporeal hereditaments) to be paid to the communities or families. According to one observer, any money received by the Headman on behalf of a community land must be shared within the community. In this way, oil-bearing communities had some form of participation in the exploitation of oil deposits in their lands.
It is significant to note that the native conception of land, unlike the statutory position of Nigerian law, includes mineral oils as part of the land. As one authority puts it, "the exclusive use and enjoyment of the land usually carried with it full rights to minerals, subject of course to the requirements of the prevailing custom and the relation of the particular occupier to the land; land usually included minerals". Perhaps this  explains why the Ogoni people of the Niger Delta boycotted a presidential election in 1993; they had argued that "Ogoni should not give legitimacy to a president who would swear to uphold a constitution that dispossessed Ogoni people of their natural rights".
2. LAND TENURE AND THE LAND USE ACT
The LUA was enacted in 1978 by a military government. It replaced the pre-existing plural land tenure system in Nigeria, thus bringing uniformity into the Nigerian land tenure system. Its target was the reform of the customary land tenure system which was considered a clog to development efforts. According to a government statement, "at present it is not only the individual who wants to build his or her house that is facing difficulties in finding a suitable land; the local, state and federal governments are also inhibited by problems placed in their way in acquiring land for development." However, being a law issued by a dictatorship it did not enjoy the benefit of robust debate in the legislature.
Moreover, although the Federal Military Government had set up a Land Use Panel to study the customary system of land tenure and make appropriate recommendations for reform, available evidence shows that it acted against the recommendations of the majority members of the Panel; the Panel could not agree on one Report and so the Report contains a ‘majority position' and a ‘minority position'. The ‘Majority Report', endorsed by the Panel's Chairman, was against either the nationalization of land or the extension of the prevailing land tenure system of the northern states to the country as a whole. On the contrary, the ‘Minority Report' (which the Federal Military Government accepted) canvassed land nationalization in the manner of the prevailing system in the northern states.
As has been seen above, the mischief of the customary land tenure system which was sought to be reformed lies in the difficulties in land acquisition for developmental purposes. But available evidence indicates that "the government had often compulsorily acquired land for oil companies before 1978 under the so-called power of ‘eminent domain', which gave it power to seize private property for public use." Right from time, the federal government of Nigeria had considered oil operations as serving the public ‘interest'. Hence, as Frynas points out, the power of ‘eminent domain' is specifically provided for in the Oil Pipelines Act and in the Petroleum Regulations 1969 (made pursuant to the Petroleum Act 1969). Consistent with justice, these laws provide for the payment of adequate compensation to the person or community whose land is acquired. Any dispute over the issue of compensation was determined by the courts. For example, in Nzekwu V. Attorney-General, East-Central State, the plaintiffs sued the government for compulsory acquisition of their land; they had demanded higher compensation than they were actually offered. It will later be seen how the LUA has affected this position.
Since its enactment the LUA has remained controversial and the subject of constant debate. Studies indicate that it is a complex piece of legislation with far-reaching consequences on different aspects of the pre-existing customary land tenure systems. Most of the impacts of this ‘reformative law' have received scholarly consideration; but the impact of the Act on the oil-bearing communities of the Niger Delta has not received any systematic academic consideration. As stated earlier, the object of this paper is to fill this gap. For our purposes, the critical question relates to the issue of ownership of land under the Act. The most relevant place to start on this issue is section 1 of the LUA, which provides as follows:
"Subject to the provisions of this Decree, all the land comprised in the territory of each state of the federation are hereby vested in the military governor of the state and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Decree."
There is no agreement on the interpretation of this provision. Some of the views considered here are only representative of the diversity of views on its meaning. One view is that by the tenor of this provision individuals and communities have been divested of their ownership rights over land without transferring it to anyone, save that the governor is made trustee of it; "one now finds it difficult to know where ownership of land lies or whether there is now any kind of ownership of land still existing." This may be contrasted with another view which sees the governor of a state as the new owner of all lands comprised in the territory of the state: "Section 1 of the Act takes away absolute ownership of land from the citizens and vests it in the governor". Notwithstanding their difference, both views agree that customary landowners have lost their pre-existing rights under customary land tenure system.
There is some measure of support for both views, even in judicial decisions, particularly for the second one. Nevertheless the second view has been obliquely attacked. It has been contended that the "vesting provision" (section 1) is ineffective without first divesting existing owners of their absolute title. This argument relies on the authority of the decision in Sir Adetokunbo Ademola V. John Ammo, where the court held that no certificate of occupancy can be validly issued in respect of a land which is in the possession of another without first revoking the title of the original occupier. The implication of this argument is that customary owners are still holding land under customary land tenure system, as section 1 of the LUA did not first divest them of their original title. This argument was judicially approved in the case of Aina Co. Ltd. V. Commissioner for Lands and Housing, Oyo State. After rejecting the contention of a state counsel that the land in dispute had become vested in the state by virtue of the provisions of the LUA, the learned judge observed:
"The fact that the defendants [Oyo state Government] are now showing an intention to acquire plaintiff/company's land by means of [Notice of Acquisition] shows beyond reasonable doubt that the property in dispute was not vested in the governor…since 1st October 1979 we had returned to the land tenures that obtained in Oyo state prior to the enactment of the Land Use Act; only we were slow to realize that fact."
There is a line of judicial decisions which contradicts the above pronouncement, and supports the view that state governors are now the new owners of land. Two cases may be used to illustrate this fact. The first case is Akinloye V. Oyejide, where the judge expressed the following view:
"In my humble opinion…the use of the word ‘vested' in section 1 of the Land Use Act 1978 has the effect of transferring to the governor of a state the ownership of all land in that state…On the literal reading of the Land Use Act 1978, I am of the view, and I so hold, that the intelligible result is to deprive citizens of this country of their ownership in land and vest same in the respective governors. The presumption that the law maker does not desire to confiscate the property, or to encroach upon the rights of persons is, in my view, rebutted on the clear and unambiguous provision of the Act."
The other case, which was a decision of the Court of Appeal, appears even more direct on the effect of the LUA on customary land tenure system. Speaking on this issue, their Lordships said:
"The ownership and title to lands in Nigeria is now vested in the governors of the various states of the federation for the benefit of all Nigerians as a whole. Communal and individual title ownership (sic) to land is now a thing of the past. The conception of land being in the family for the past, present and future members of it is no longer valid…The freedom of alienation and dealing with the land which was vested in the heads of the family or traditional authorities is now vested in the government…"
The confusion engendered by these conflicting views, particularly in judicial decisions, is apparent. It was under this situation that the Supreme Court (the highest court of the country) moved in the case of Abioye V. Yakubu to reconcile the conflicting views. The central question in that case was "whether, having regard to the provisions of the Land Use Act 1978, customary owners are entitled to be granted declaration of title to a parcel of land against their customary tenants." After  elaborate proceedings in which the court had sought the assistance of senior lawyers as amici curie, the court held, inter alia, as follows:
(1)That the Land Use Act has removed the radical title in land from individual Nigerians, families, and communities and vested the same in the governor of each state of the federation in the federation in trust for the use and benefit of all Nigerians (leaving individuals, etc., with ‘rights of occupancy'); and
(2)That the Act has also removed the control and management of lands from family and community heads/chiefs and vested the same in the governors of each state of the federation (in the case of urban lands) and in the appropriate local government (in the case of rural lands).
It should be observed that this decision accords with the Court of Appeal decision in the case stated above. It also accords with an earlier decision of the Supreme Court where the court had pointedly said:
"This appeal deals with the interpretation of some of the provisions of the Land Use Act 1978. Since the promulgation of the Act by the military administration of General Obasanjo in 1978, the vast majority of Nigerians have been unaware that the Act swept away all the unlimited rights and interests they had in their lands and substituted them with very limited rights and rigid control of the use of their limited rights by the…governors…This appeal…will bring the revolutionary effect of the act to the deep and painful awareness of many…Section 1 of the Act has made no secret of the intention and purpose of the law. It declared land in each state of the federation shall be vested in the… governor of each state."
Now, what is the "revolutionary effect of the LUA" which has been brought to the "deep and painful awareness" of the Niger Delta people? This is the subject of the next section
3. IMPACT OF THE LAND USE ACT ON THE NIGER DELTA PEOPLE
It has been observed that: "It is…beyond the direct powers of the legislators to determine the impact of their laws, for the effects of legislation are conditioned by a multitude of agencies and processes only some of which fall within the purview of the state. The distinction between legislative intention and legislation's effects is an impact of the disjunction between the national and the local; between the state's pretensions and the community's impermeability; or, in their normative aspects, between ‘law' and ‘custom'."
In any case, where a legislation produces an unintended effect or works hardship, an occasion arises for the repeal or amendment of the legislation in order to end the unintended result or injustice. As we shall see presently, it seems the occasion has arisen for the repeal of the LUA. For convenience, the impact of the LUA on the Niger Delta people will be discussed under two sub-heads, viz: (1) Loss of power by traditional authorities; and (2) Loss of right to compensation. These will be considered in turn.
3.1. LOSS OF POWER BY TRADITIONAL AUTHORITIES
As has been pointed out above, one of the most important features of customary land tenure system is the power (and right) of management and control entrusted with the community's Headman or chief (usually the oldest surviving male member of the community). As manager, it is he who allocates portions of the land to members of the community and to non-members/strangers for their personal use, usually for farming purposes or for building residential houses; he protects the land against all intruders and receives any compensation or other money on behalf of the land. In allocating portions of the land to members of the family, he is usually guided by the requirements of fairness and justice; he ensures that nobody is cheated. As it relates to oil operations, prior to 1978, oil companies sought and obtained the consent of the Head of a community upon terms to pay adequate compensation for any damage to surface rights and compensation (annual rents) for the use of their land.
It is important to note that if any member had any complaint against another member or a stranger, particularly as it relates to farmland (the people are traditionally subsistence farmers and fishermen) he brought it before the Headman who looked into the matter and settled it. It appears sometimes the complaint related to damage arising from oil spill (which is a common phenomenon in the Niger Delta). Available information shows that the local people invariably gave power of attorney to their Headman to pursue their claims (which usually included damage to surface rights and to the land in its intrinsic state). Before 1978 successful ‘individual claims' were paid to the beneficiary while ‘common claims' were shared amongst members of the community in a way that ensures justice for all. This way, the traditional authorities helped to maintain social cohesion.
Now, as Abioye's case indicates, the traditional authorities (Chiefs/Headmen) have lost their traditional rights and powers of management and control of land. This is the direct result of section 2(1) of the LUA which provides that "as from the commencement of this Act"-
"(a) all land in urban areas shall be under the control and management of the military governor [now interpreted to include civilian governors] of each state;
(b) all other land shall, subject to this Decree [Act], be under the control and management of the local government within the area of jurisdiction of which the land is situated."
Having regard to the important role of traditional authorities as earlier stated, it is hardly surprising that at a very early stage the traditional authorities saw the Act as "an attempt to bring chaos into the country". The implication of this statement is that the LUA has the potential of causing social disruption and disorder in community life. This is true because  available evidence indicates that among the native people of southern Nigeria the subject of land is a sensitive. For instance, with respect to the Yoruba people of South-western Nigeria, it has been observed long ago that "there is no subject in which the Yoruba is more sensitive than that of land. These normally quiet and submissive people can be roused into violent action of desperation if once they perceive that it is intended to deprive them of their land." This observation is equally true of the Niger Delta people. In fact, only recently, the representatives of four Ijaw communities of the Nigeria Delta indicated in a signed statement that they are ready to defend their ‘God-given right' to their land "with our blood".
Today, as the traditional authorities have lost their rights and powers, and therefore unable to effectively manage complaints, violent actions and social disharmony have become endemic in the Niger Delta. From all indications, this is the direct result of the loss of their land rights and is directly related to the injustice of loss of right to compensation which is the subject of the next section.
3.2. LOSS OF RIGHT TO COMPENSATION
Compensation may be said to be a suitable payment in return for loss or damage. This can be achieved by way of negotiation, arbitration or litigation. Perhaps it is in recognition of the need for recompense that the Petroleum Act (under which compulsory acquisitions of land for oil operations - by the power of eminent domain - was made prior to the enactment of the LUA) made provisions for the payment of adequate compensation to owners of land compulsorily acquired for the purposes of oil operations. Besides, as earlier noted, prior to 1978 where land was not compulsorily acquired by the government and an oil company had to negotiate with community land owners for access to land for oil operations, it settled the amount of compensation (annual rent) it had to pay to the community for the use of the land in its intrinsic nature (oil operations may result to a total loss of use of the affected portion of land by the land owners). Additionally the oil company had to pay compensation for any damage to surface rights (e.g. farm crops or building). In this case, compensation must be fair and adequate and its payment is consistent with fairness and justice.
To put it metaphorically, payment of compensation is a soothing balm to oil-bearing/land-owning communities. Significantly, any dispute over the issue of compensation was decided by a court of law. On the whole, oil-bearing communities had some sense of relief when compensation is paid to them. With regard to payment of compensation in the sense of annual rent, they additionally felt some sense of participation in the exploitation of oil resources located in their lands (it should be remembered that by statutory provisions they are not entitled to any rent or royalty for the exploitation of oil). Moreover oil companies recognised oil-bearing communities as their landlords and this carried with it some minimal ‘privileges': employment of some community members as security-men for oil installations and the award of small contracts (mostly the maintenance of oil pipelines by keeping them free from weeds).
Since the enactment of the LUA in 1978, acquisition of land is now done under the Act. The Act provides for the revocation of a right of occupancy by the governor of a state for "overriding public interest", in that it is required for mining purposes or oil pipelines or for any purpose connected therewith. When this is done, the law provides for the payment of compensation to the ‘holder' and ‘occupier' "under the appropriate provisions of the Minerals Act or the Petroleum Act or any legislation replacing the same". Under section 77 of the Minerals Act, any person prospecting or mining shall pay to the ‘owner or occupier' of private land "such sums as may be a fair and reasonable compensation for any disturbance of the surface rights of such owner or occupier and for any damage done to the surface of the land upon which his prospecting or mining is being or has been carried on and shall in addition pay to the owner of any crops, economic trees, buildings or works damaged, removed or destroyed by him or by any agent or servant of his compensation for such damage, removal or destruction". The appropriate provision of the Petroleum Act is similar to this. Even so section 29(3) of the Act gives a discretion to the governor of a state to decide who receives the money (and possibly how it may be utilised). It would be recalled that under the prevailing customary land tenure system before 1978, any such compensation would be paid to the traditional authority of the community concerned for the benefit of the community. Quoted in extenso, section 29(3) provides:
"If the holder entitled to compensation under this section is a community the governor may direct that any compensation payable to it shall be paid-
(a)to the community; or
(b)to the chief or leader of the community to be disposed of by him for the benefit of the community in accordance with the applicable customary law; or
(c)into some fund specified by the governor for the purpose of being utilized or applied for the benefit of the community."
It would appear that this provision is a confirmation of the view held in some quarters that the governor of a state is the new owner of all the land comprised in the territory of the state. As could be observed, the provision speaks of holder and not owner (of a right of occupancy- new interest in land created by the LUA). The result is that, like oil rights, land rights are now vested in the state. This situation has been described by an observer as nationalization of land. In his words, "the meaning and effect of vesting all lands in the government is that private ownership is hereby abolished and the title of the former private owners transferred to the government." Available evidence indicates that compensation for land compulsorily acquired under the Act are now paid to the governor of the state concerned and not to the community Headman as before. In the result, the communities hardly receive any portion of the money paid or have any useful thing done for them out of the compensation. A source claims that state governors now feel communities are no longer entitled to compensation as of right since they no longer own any land. Maybe this is an aspect of the ‘revolutionary effect of the LUA' on the oil-bearing, peasant communities of the Niger Delta which the Supreme Court alluded to in one of its decisions mentioned above.
Apart from compensation for land compulsorily acquired, the issue of compensation can also arise in the course of oil operations. For example, damage arising out of oil pollution. It is a notorious fact that oil operations (activities of the oil industry) involve the risk of oil pollution. As has been pointed out, "the threats of pollution are real. Their economic consequences are real. Their health consequences are real. There are sufficient data to make strong cases based on facts." In fact, studies suggest that the Niger Delta is a case study in pollution; there are all conceivable types of pollution in the Niger Delta. Of all, gas flare and oil pollution (arising from oil spill) appear to be the most serious. According to a recent World Bank report on the Niger Delta, "oil development can degrade the environment, impair human health and precipitate social disruptions."
When pollution occurs it is only fair and just that ‘adequate compensation' should be paid to the victims. However, notwithstanding the great nuisance and health risks involved in constant gas flare (which is an aspect of oil pollution), there is no evidence that oil companies in Nigeria had ever paid compensation to the victims. The phenomenon and the evil of gas flare in the Niger Delta were admirably stated in a recent study, thus:
"Gas flaring has been the most constant environmental damage because in many places it has been going on 24 hours a day for over 35 years. There are hundreds of gas flares throughout the Niger Delta. It affects plant life, pollutes the air, pollutes the surface water and as it burns, it changes to other gases which are not very safe. It also results in acid rain. With the pullout of Shell from Ogoniland, gas flaring has stopped in 4 of the 5 flow-stations. Where the gas flaring has stopped, people were able to see a difference in their vegetation; farm yields are better than before. The people did not know what it was like to live without Shell. It is only now that the people in these areas can see what type of environmental devastation the gas flaring had been causing for the past 35 years…"
In the case of oil pollution (arising from crude oil spill) scientific evidence has shown that it can cause long-lasting or permanent damage to the land itself (e.g. loss of fertility). In which case it may represent a permanent or great loss of use to those who depend on it for their livelihood. Yet, according to sources, since the enactment of the LUA whenever the oil companies accept liability for oil spill, they only pay ‘compensation' for any surface rights (like farm crops) and not for the land itself. "Meanwhile, the people would have suffered huge and untold losses. Apart from the health risks to which they are exposed by pollution, they suffer losses of economic activities. Fishing activity suffers as fish die from pollution or migrate elsewhere. Farmers are dislodged from the soil they have been using for so many years and all of these losses are not adequately addressed by either the compensation paid or the system of paying compensation."
Their contention is that "the communities own neither the surface of the land nor what is beneath". This attitude is typified by a recent statement by Shell oil company: "As a responsible Nigerian company SPDC [Shell Petroleum Development Company] obeys the laws of the country, one of which is the Land Use Decree of 1978 which vests ownership of all land with the government (sic)…Today we give compensation for the surface rights of all land acquired for our use and for damage…from subsequent activity, including oil spills…" The implication of this statement is that the present attitude of the oil companies is informed by the provisions of the LUA. A source indicates that even the so-called ‘compensation' for surface rights does not meet the requirements of fairness and justice – it is not fair and adequate.
It appears the impact of the LUA on the Niger Delta people ranges beyond the two ‘broad' issues considered above. Perhaps the full amplitude of injustice which the LUA is visiting on the Niger Delta people would be better appreciated if the following facts are considered:
(1)Disputes over quantum of compensation payable for land compulsorily acquired under the Act or other issues connected therewith are to be settled administratively (and not by the courts as before) by a statutory body called Land Use and Allocation Committee, members of which are appointed by the appropriate state governors (who are known to be in alliance with the multi-national oil companies and against the communities). There is no statutory provision to ensure the independence and impartiality of these bodies. In fact, a provision indicates that they are under the control and direction of the governors: "The Land Use and Allocation Committee shall,…subject to such directions as may be given in that regard by the governor…have power to regulate its proceedings". Perhaps ex abundanti cautela section 47(2) of the Act expressly ousts the jurisdiction of the courts: "No court shall have jurisdiction to inquire into any question concerning or pertaining to the amount or adequacy of any compensation paid or to be paid under this act."
(2)Oil-bearing communities of the Niger Delta are traditionally fishermen and farmers and depend on the land for their livelihood. Oil pollution (which occurs frequently) can cause serious or permanent damage to the land itself. There is evidence that farm yields are now poor in the region because of the effect of pollution on the land. As has been stated, one commentator has noted, "gas flaring has been associated with reduced crop yield and plant growth on nearby farms, as well as disruption of wildlife in the immediate vicinity."
(3)Several years of unsustainable exploitation of oil has devastated the local environment, thereby depriving the people of the optimum use of their lands and waters. This point is captured by this observation: "Environmental pollution from the oil industry has had far-reaching effects on the organization of peasant life and production. In addition to the effects of spills on mangroves…spills of crude, dumping of by-products from exploration, exploitation and refining operations (often in freshwater environments) and, overflowing of oily wastes in burrow pits during heavy rains has had deleterious effects on bodies of surface water used for drinking, fishing and other household and industrial purposes. The percolation of industrial wastes (drilling and production fluids, buried solid wastes, as well as spills of crude) into the soil contaminates ground water acquifers." The impact of the Funiwa-5 oil blow-out on the affected areas illustrates this observation. Investigations at Fishtown (one of the impacted areas) eighteen months after the blow-out showed the top soil and ground water still contaminated. Yet all these are not counted in the assessment of damages due to the victims under the LUA.
(4)Since oil is statutorily and exclusively vested in the state, oil-bearing communities  of the Niger Delta are not entitled to rents and royalties paid for the exploitation of oil in their lands by the oil companies. Annual land rent was an important way by which the people partook in oil revenue.
(5)The Niger Delta people are ‘minority groups' in the Nigerian federation and there is no constitutional or other legal provision quaranteeing them access to political power at the centre where they can take or partake in decisions on how oil revenue can be utilized. Annual land appeared to be their only consolation.
(6)The Niger Delta remains undeveloped despite the enormous revenue derived by the Nigerian state from the exploitation of oil in their homestead. According to a recent World Bank report, "of the resources available in the Niger Delta, oil is by far the most valuable to the national economy. However, the benefits to the Niger Delta region is less obvious." It seems the situation is worse today since they are no longer considered as stakeholders in any sense whatsoever.
(7)The Niger Delta people are amongst the poorest people in Nigeria, despite the huge revenue derived from oil exploited from their lands. This poverty is accentuated by the despoliation of their lands by the activities of the oil companies. In the words of an observer: "Ironically, the oil industry which has brought development to many parts of Nigeria, has become a source of misery to the people of oil-producing communities whose existence is now threatened by the scourge of oil pollution."
(8)There is an alliance between the Nigerian state (controlled by the majority ethnic groups) and the oil companies which helps to deprive the Niger Delta people of employment in the oil companies, with the result that unemployment abound in the Niger Delta. Annual rents compensation had been a source of some income for the people.
(9)Since the enactment of the LUA, the oil companies no longer approach the communities to negotiate access to land for oil operations, on terms of payment of compensation, as was the case before. In fact, "it is possible for the government to acquire a vast area of land for petroleum purposes, i.e. granting the operator a lease over a large area, yet the villages will know nothing about the acquisition"; they wake up one morning to find that the government has given out their farmland to oil operators. Hence the feeling of participation in the exploitation of oil found in their land has been lost and this has accentuated a sense of deprivation.
(10)Protests over the injustice of the LUA by the Niger Delta people had been met with gross violation of human rights by the government. Several lives have been lost in clashes between protesters and government security agencies.
(11)In enacting the Land Use Act, the federal government showed bias against the Niger Delta people by ignoring a positive recommendation of the Land Use Panel which it had set up to make recommendations for land reform. The panel had recommended that the "federal government should take a serious look at the effects of oil exploration and exploitation" with a view to "improving the quantum of compensation payable to land owners" and to compelling oil companies into "complete reclamation" of all leased land. This recommendation was borne out of their findings in the Niger Delta.
(12)Because they no longer pay compensation for any damage to the land itself, the oil companies have tended to be more reckless in their operations in the Niger Delta.
As we shall see presently, the Niger Delta people see the impact of the LUA on them as bordering on expropriation and injustice. It would appear that they are not rid of the conviction that oil belongs to them, being traditionally part of their land. Hence they are struggling for justice: to regain possession of their ‘seized' property; to end the despoliation of their environment by reckless oil operations. Two instances will illustrate this point. Firstly, in 1993 the Ogoni ethnic group of the Niger Delta boycotted a presidential election on the argument that "Ogoni should not give legitimacy to a president who would swear to uphold a constitution [the LUA has been part of the Nigerian constitution since 1979] that dispossessed Ogoni people of their natural rights." They have even taken their case to several international bodies. The second instance relates to a recent action by some dissatisfied youths of the Niger Delta. On 11 December 1998, Ijaw youths organisations gathered under the umbrella of Ijaw Youths Congress (IYC) at a place called Kaiama and issued a Declaration which they called ‘Kaiama Declaration'. Part of this Declaration reads:
"All lands and natural resources (including mineral resources) within the Ijaw territory belong to the Ijaw communities and are the basis of our survival…We cease to recognise all undemocratic Decrees that rob our peoples/communities of the right to ownership and control of our lives and resources, which were enacted without our participation and consent. These include the Land Use Decree and the Petroleum Decree, etc…"
These two instances appear to aptly illustrate the observation of a learned author in a similar context:
"There are, indeed, many different methods of expropriation, but, so far as the dispossessed owner is concerned, they…do not necessarily rid [him] of his conviction that he is the owner, and that he should be entitled, if not to secure his reinstatement as an owner, then at least to claim some compensation for his disappointment."
4. CONCLUDING REMARKS
It has become a platitude to point out that the Nigerian state, like most other African states, was an artificial creation. Yet the recent Kaiama Declaration restated the point when it said: "it was through British colonisation that the Ijaw nation was forcibly put under the Nigerian state." This is an unequivocal attack on the legitimacy of the Nigerian state, and (located in the context of the entire Declaration) an indication that the issue of state legitimacy and ownership of natural resources are still current political issues in Nigeria. In fact, in a recent statement the Rivers state Study Group poignantly said:
"At the moment the colonial government left Nigeria… there was no doubt in the minds of the Oil Rivers Peoples [as the Niger Delta people were generally known during the colonial era] that natural resources and in particular land, petroleum resources and other economic potentialities belonged to the autochthonous peoples of ‘Nigeria' wherever they were and we had no misgivings of the magnitude that a Petroleum Decree and a Land Use Decree would emerge, whereby all the most important natural resources of our peoples would be confiscated by the central government…"
This article has amply demonstrated the hardship and injustice which the LUA is occasioning to the Niger Delta minorities. While other aspects of injustice (such as environmental degradation and under-development of the region) may take some time to redress, this is not the case with the injustice brought about by the provisions of the LUA. This can be quickly ended by the repeal of the LUA; what is required is the political will to do it. Sustained protests and demands for equity, despite repressive actions by the government, indicate that the struggle is the life of the people. It does not seem that token responses like the recent establishment of the Niger Delta Development Commission can be an answer to the injustice of the LUA. The people are demanding the repeal of the LUA. More than that, they are demanding the right to control their natural resources. "Claims long dormant are being asserted in ways that call for answers, not merely token responses or outright repression."The recalcitrance of the government to address the issues raised in a concrete way poses a great danger to the Nigerian state. As a recent report surmises, "the lingering crisis in the Niger Delta constitutes a threat to peace and stability, and therefore to democratic consolidation in the larger Nigerian society." The repeal of the LUA may force a truce, as it would end the injustice it is presently visiting on the people. Hence, the position of this article is that the LUA should be repealed without further delay.

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