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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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