CHAPTER FIVE
CONCLUSION
AND RECOMMENDATIONS
5.1 Observations
It is not debatable, that the economic status and development of
Nigeria is largely depended on the scale of income realized from mineral oil
more than any other single commodity. This evidences the need for continued
exploration, exploitation and production of oil in the country. The plight of
the inhabitants of these areas where the oil is being wined has been told with
so many instances and cases in the previous chapter of this work. The facts in,
Chief Caippers Enoch & Ors v. SPDC
(supra)[1] is
an example. This brought to fore the failure of the multinational oil industry
to put adequate preventive measures in place to mitigate the effect of oil
pollution in Nigeria.
Consequently,
the provisions of the local laws for the control of environmental pollution and
hazards in Nigeria are two shallow and poorly implemented. For example section
36 and 37 of FEPA (supra) the meager penalties provided for under this section
are not adequate enough to serve as a deviants to such rich oil companies
as Shell, Chevron and other
multinational oil companies operating in the country. A part from local laws,
one could quickly ask, is there no internationally recognized standard for good
oil field practices in the country and if there is, are these multinational oil
companies observing of these standards?
The truth is that international standard does exist. And some of these
international standards were provided for under the various international
conventions and laws discussed in chapter two of this work. For example, Article 6(1) of the International Convention
on Oil Pollution Response and Cooperation[2]
which provides and I quote,
Each state party must establish a national system for
responding promptly and effectively to oil pollution incidents. This system
shall includes (a) the designation of the competent national authorities with
responsibilities for oil pollution preparedness and responses, the national
operational contact point which shall be responsible for the receipt and
transmission of oil pollution reports. (b) a national contingency plan for
preparedness and response which includes the organizational relationship of the various body involved
whether public or private, taken into accounts the guideline developed by the
International Maritime Organization (I.O.M).
It is regrettable that some of these
international laws or conventions that are meant to standardize the management,
control and response to oil pollution has not been domesticated and put to use
in Nigeria inline with the provisions of section
12 of the 1999 Constitution (as amended)[3].
However, it is no longer in doubt that the
activities of multinational companies operating for oil in Nigeria, lack every
sense of international standards. This prompted the allegation leveled against
Shell BP, by some group of Nigerian[4] on
double standard[5] (meaning
that the standard exhibited in Nigeria by Shell BP is different from their
standard of operation in North America). In defense to this allegation at the
annual Shell Group meeting held in London in May 1996. The group Chairman John
Dennings stated that:
The charge of double standard is mistaken because it
based on the notion that there is a single environmental standard, as well as
we continue to improve, varying standards are inevitable.
The evidence in support of the fact that
the multinational companies operating for oil in Nigeria does not comply to the
available international standard in the country is implied in the statement of
the Group Managing Director Shell BP C.A.J, Herkstroter, at the parallel annual
meeting held in Netherlands, in 1996, where he stated as follows:
That, higher environmental standards could harm local
economics, should we apply the higher cost western standards, thus making the
operation uncompetitive and deprive the local work force of jobs and the
chances of development. Or should we adopt the prevailing legal standards at
the site, while having clear plans to improve towards best practices within
reasonable time frame?[6]
The statements of the two great minds in
the oil industry above, summarizes the true situation of the standards
applicable in exploitation of oil and conservation of environmental good in
Nigeria.
The
effect of non compliance to international standard in Nigeria is one of the
evidence of sporadic and continued environmental fouling, through oil spillage
and gas flaring within the region of Niger Delta. This evil, is at the
detriments of good environmental programmes and sustainable development. While the victim s’ fates were left at the mercy of
prolonged court cases, which some times yield little or nothing positive at
all. Depending on the victims ability to prove damage and or cause of action to
the satisfaction of the court.[7]
Furthermore, these oil companies often
times, take cover in the provisions of the laws that are favorable to them in
other to evade liability. For example, such defenses as act of sabotage.[8] It
is important to note here that Nigerian judicial system in conjunction with the
jurisprudence of other parts of the world, has been so strict in the
application of the provisions of section
4(4) of the Oil in Navigable Water, Act[9]
which provides that:
it shall be a defense for the occupier of a place on
land, who is charged with an offence under the last preceding section improve
that the discharge was caused by the act of a person who is in that place
without the permission of the occupier.
And the provisions of section 22(1) of FEPA Provided in Chapter Two of this work respectively.
In fact, the polluters have succeeded in a good number of cases involving
environmental fouling and destruction of means of livelihood against them by
the virtue of these defenses.
Hence, the Nigerian Court in Umudje & Anor v SPDC (Nig) Ltd[10] in a claim for compensation
resulting from damage to fish ponds, streams, farmland and economic trees. The
court held that the company is not liable since the act was caused by the
mischievous act of a third party and there was no negligence on their parts.
Similar decision was also reached by the Indian court in Mardraj v Texaco Trinidad Inc[11].Where it was held that
An oil company was not liable for an escape of oil and
consequent damage to the crops of neighboring landowners which was caused by an
unknown trespasser deliberately drilling a hole in the company’s oil pipelines.
However, these positions of the courts are good but
cushion should be taken by the courts with jurisdiction over oil pollution
matters in respects to granting of these defenses of sabotage or the act of a
third party. This is because, since it has been observed as noted above that
these oil companies are not complying with the international standard, they may
decide to use this pipelines beyond its required life span, making it prone to
damage in any slight contact. And when an action is brought against them as a
result of spillage from such incident they will turn around to claim defense of
sabotage.
Nevertheless, the issues of the
Alternative Dispute Resolution A.D.R, noted in the concluding part of chapter
four of this work, is ripped for adoption by the victims of the oil pollution.
Considering the fact that prove of damage or cause of action witnessed in the
case of San Ikpede v. SPDC[12] may defy the chances of
securing adequate and fair compensation to the loss they incurred to oil spill.
Similarly, the measurement of the actual loss may be better fixed out side the
court. Taken due regard on the fact that the negotiation will be carried out in
an open and relax minded atmosphere.
5.2 Recommendations
The celebration of positive impact of mineral oil in Nigeria, should
not quieting the sense of need for sustainable development of the environment,
in addition to protecting human lives, and preserving plants and animals
species from extinction. The very fact that oil spill cannot be totally avoided
in the face of oil exploration, exploitation and production, arose the
curiosity of solution. On this note I, recommend as follows;
1. Courses
in Oil and Gas Law should be Introduced in all the Universities in Nigeria.
The
need for further studies and continued research in Oil and Gas Law in Nigeria
is quite over ripped. The knowledge for good oil field practices vis-Ã -vis
management and control of oil pollution in the country is most sacrosanct. Hence,
urgent introduction of courses of study in Oil and Gas Law, both for degree,
masters and PhD programs in all Nigerian universities will be the most
appropriate for the stemming of the oil pollution insurgencies in the country,
hence using the powerful instrument of research and information.
However,
Technical and managerial knowledge acquired in Oil and Gas Law will apart from fostering new ideas for good
management and control of oil pollution, be used in providing expert advise in
oil pollution related matters. More importantly, masters and PhD programs in
Oil and Gas laws when offered by Nigerian universities will give opportunities
to many who ordinary could not have afforded over-sea’s education, to acquire
knowledge necessary for better management and dispensation of oil pollution
cases in courts.
2. Life
span for oil pipelines carrying oil in Nigeria
It is
more effectual to prevent the occurrence of oil pollution than remedying the
effects of its disaster. One of the ways by which oil pollution could be
prevented in Nigeria is by enacting a law, banning the continuing use of worn
out oil pipeline without maintenance or replacement by the multinational oil
companies operating in the country. The enforcing mechanism of this law should
see that the provisions of the law relating to pipeline management including
procedure for laying maintenance and replacement are strictly followed. And
that no oil pipeline in Nigeria, is used beyond its life span. This is
important because, the worn out nature of some of the oil pipeline carrying oil
in the country sometimes contribute to its easy damage either by accident or
through act of sabotage. Leading to spillage and thereby pollute the
environment.
Furthermore,
apart from replacement of the worn out pipelines, there should be a regular
maintenance of the oil pipelines. This will go a long way to enhance the
durability of the pipelines and keep them in proper shape for efficient
carriage of oil.
3. There
should be a law to combat non compliance to international standard on good oil
field practice in Nigeria
It
was noted in chapter four of this work that the oil companies operating for oil
in Nigeria have over the years, flout with impunity the international required
standard for good oil field practices and sometimes with a very flimsy excuses.
Therefore to checkmate the purport of this notion and as well drag the
concerned oil company to compliance, the legislators should enact a law with
stiff penalties for non compliance to international standard in oil operation
vis-Ã -vis oil pollution control and environmental management in Nigeria. The
importance of this could be drawn from the fact that weak enforcement procedure
has been the bane of most of the international conventions which was the
proponents of these provisions. Hence, state legal instrument is sacrosanct to
supplement and give virile to the enforcing mechanisms of the conventions.
4. Emergency
Response Action plan should be established with Offices in all the 36 States
that make up Nigeria:
NNPC
and the oil companies operating in Nigeria should as a matter of urgency, put
in place effective emergency action plan, “fully equipped with all necessary
technical facilities necessary to wrestle the sprayed of oil on the land and
onto the waters at any event of spill. Thus, this will reduce escalation of oil
pollution and mitigate the extent of its damages.
Similarly,
the agency for emergency management and control of oil pollution should be
established with an office throughout the 36 states of the federation. This is
because oil pollution though more prevalent in the oil producing areas, the
occurrence cannot be totally ruled out in other parts of the country. Perhaps,
there have been stories of petrol tankers slumped on the way before getting to
their various consumers’ destinations. This often results to spillage and
sometimes leading to destruction of lives and properties. However, with the
immediate intervention of such emergency control agencies, the quantum of loss
at the event of such spill could be mitigated.
5. Compulsory
clean-up and periodical Bio-remediation operations should be carried out by the
concerned oil company: Pollutant such as oil is capable of rendering permanent
damage to the affected sites. For instance, when oil pollution occurs, it
sprayed and covers the surface of the water in a very tiny sheet and remains
there unless removed. This makes it impossible for Oxygen (O2) to
penetrate into the water. This has been explained in detail in the preliminary
stage of this work. The effect of this is the death of the marine resources
which primarily depended on the available oxygen in the water to exist. On the
land however, the oil when spill, continues to sink deep into the soil, causing
the roots of the plants growing there to form bobbles and become incapable of
absorbing water, thus, leading to the death of the crops and all other economic
trees growing therein.
However,
to prevent the occurrence of such consequential damage mentioned above, the oil
companies operating in Nigeria should be compelled to respond promptly at any
event of oil spill and to carry out clean-up and bio-remediation exercise in
accordance with the provisions of National Oil Spill Detection and Responses
Agency Act (NOSDRA) 2006.
Nevertheless,
some of the importance of clean-up and Bio-remediation exercise includes but
not limited to, healing the affected areas and putting or restoring it back to
its original state. Perhaps, it is one of the best measures since it serve as a
means of restitution which some of the oil pollution victims sometimes sought
in the court. In other words, when the affected water or land is cleaned and
properly treated, it will become safe for use again.
6. Concurrent
jurisdiction on oil pollution matters should be conferred on both state High
Courts and the Federal High Courts:
One of the challenges of action on oil pollution
causes has been noted to be the issue of jurisdiction. It is obvious that
virtually all states in the Federation of Nigeria have State’s High Court but
such is not the same when it comes to Federal High Courts. Therefore, for even
access to justice for the victims of oil pollution, States High Courts should
be empowered by the relevant laws to hear and determine actions in oil
pollution matters.
On
the second hand, concurrent jurisdiction on oil pollution matters when
conferred on both State High Courts and the Federal High Courts will help to
decongest the Federal High Court of over flow of litigations already
experiencing by its proceedings.
7. Relevant
provisions of the law should be enacted to put an end to gas flaring in Nigeria:
Negative effect of gas flaring is beyond bounds as noted in chapter
three of this work. Is it the corrosive effect on the steel roofing sheets,
which reduce the durability of the roofs of the house, formation of acid rain,
or the environmental and health complications. In fact, the debilitating effect
of gas flaring is such that could not be tolerated in any healthy environment.
Hence the urgent need to put an end to it in Nigeria.
However,
the legislatures should either revived the existing environmental related laws
or better still enact new one to make
available, provisions, banning gas flaring in Nigeria.
8. There
should be a Regulatory control on sitting of petrol stations and mechanic work
shops in Nigeria:
The fact that no oil pollution when compare its
resultant effect could be adjudged small, envisaged the need to put all action
which could in one way or the other result to oil pollution in check. If a look
is taken around our cities, it is discoverable that most petrol stations is
located side by side with residential houses, churches, mosque, schools,
markets and indeed other conventional places. This is dangerous because the
little drops or spillage of oil at the petrol stations is capable of sparking
off fire. And when this happens, the closest spots becomes the victims.
Mechanics’
work-shops, on the other hand are not encouraging at all to be sited close to
an area where the people get their source for water. Because the used or
condemned oil spilled at will by the auto spare mechanics could be washed into
the water by rain and when the people drink such water, it could result to one
form of ill health or the other. On this note, I call on those who are
responsible for the enforcement of existing Environmental Impact Assessment Act
(EIA) to wake up from their slumber and check the proliferation of petrol
stations and mechanics workshops all over the cities in Nigeria. Or
alternatively, the Nigerian legislators can by legislation, provide a law with
more stiff penalties against those who end at noting than to vitiate the laws
guiding environmental issues.
9. The
government of Nigeria through NNPC should organize Regular workshops and
sensitization programmes for the people within the oil producing areas:
Oil
pollution as said before is better prevented than managing its effect. The
people of Niger Delta if given adequate education and information on prevention
and control of oil pollution, the incessant complaint of oil pollution in the
region could be reduced. For instance they could be informed on the danger
inherent in the act of pipeline brakeage, and more importantly how to respond,
whom to call and where to complain to at any event of oil spill in the area. They
could be equipped with information skills and equipment for possible evacuation
of their fishes at the event of oil spill.
10. Nigerian
people should be Educated on the importance of approaching Alternative Dispute
resolution Mechanism (ADR) in seeking compensation for their loss as a result
of oil pollution
Alternative
dispute resolution (ADR) as noted in chapter four of this work, in contra
distinction to court litigation, give equal access to justice to every body,
“Rich or poor alike” less capital intensive, safes time and discourages enmity. With A.D.R,
victims of oil pollution will no longer be denied access to justice on the
ground of jurisdiction. With ADR approach, the victims are likely to obtain
more valued compensation compare to what is obtainable in court. This is
because, the victims in the very relax of their minds would be able to use all
the available chances without restriction to measure their losses, simply
because they are almost in control of the whole process unlike the court instances
where they can only speak through their counsels or sometimes through the
judge.
However,
since the venue will be decided by the parties, the victims are saved of costs
of transport and are encouraged to pursue their cause to a logical conclusion.
They can agree or disagree on any decision without incurring any contempt,
though depending on the approach adopted.
5.3 Conclusion
Without
missing words, the oil rich Niger Delta Area of Nigeria is indeed a blessing to
the country. Perhaps, the exploitation of this natural mineral oil goes with
its expectant challenges. However, the pains experienced by the inhabitantsof
Niger Delta is however predicted on the effectiveness or otherwise of the
management of the said challenges posed by the processes applied in
exploitation and exploration of the oil. Thus, the environmental hazard
commonly experienced in the Region of Niger Delta as expounded in chapter three
of this work is therefore surmountable.
Consequently,
since the major environmental complaints in the Region of Niger Delta had over
the years over remained fouling and destruction of environment related
substances into the land and waters resulting to the damage, it therefore
suffice that such measures as regular clean up exercise and others bioremediation
on the land and water is most appropriate. Furthermore, the position of oil and
gas in the growing Nigeria in economy has been over stretched in both
introductory part and chapter 5.1 of this work and it goes without saying that
the appreciability of Nigerian gross net income. However, if this asserted
being the true state of things, it will not be out of place for Nigerian
government to make the clean up of Niger Delta environment to make the clean up
of Niger Delta environment of its programmed agenda.
Similarly,
all the relevant provisions of both local, statutes and international
conventions elucidated in chapter two and four of this work has however pointed
to the fact that international standard for environmental management is
attainable. Wherefore any deviation from the international standard becomes a
direct violation of the proviso enabling it. It is in fact disheartening that
the existing oil industries operating in the country are very fare from
observing the international standard and other environmental ethics as pointed
out in chapter four of this work. though the existence of laws in one thing and
its enforcement the other, hopes never eluded the victims in this devastating
situations. Alternative dispute resolution thoroughly illustrated in chapter
four of this work provides for the victims of oil pollution being the [subject
matter of this project] among other things in avenue for instituting a direct
negotiation with the accused oil from without having to undergo the rigorous processes
of litigation. In other words, with A.D.R., access to justice is evenly
available, to everyone including the poor victims of oil pollution damage.
For
better environmental management in the Nigeria oil sector and for some other
questions arising from the sharp practice of the multinational oil companies
operating in the Niger Delta Area and issues relating to the fate of the
communal life in Niger Delta recommendations provided in chapter 5.2 of this
work has a lead answer.
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[1] The
claim in this case was for compensation
for the death of children as a result of the drinking water polluted by
an oil spill, damage of farm lands and economic trees and complains from
residents of the affected
area that fisher collected by them tasted paraffin (Kerosine), thus, indicating
the presence of hydrocarbon
contamination.
[2] supra P19
[3] Section
12(1) of the Constitution (supra) provides that “No treaty between the federal
and any other country shall have
the force of law except to the extent which any such treaty has been enacted
into law by the National
Assembly.
[4] Ref world/The
price of oil 2 corporate responsibility and human rights, www.unher.org/reworld/topic,456502searched
[5] Ibid p.4
[6] www.unher.org/refworl/topic456502/suora).page
[7] In
Umudje v. SPDC (supra), the sum of N 100.000.00 was clamed by the victims as
fair and reasonable com[ensation for the damage done to the plaintiff’s farm
land, fish ponds and economic trees, through wrongfully and partially blocking
original channel or water ways and replacing it with access road by the
defendants and their agents. The trial court awarded the sum of N14,400.00 as
fair & adequate compensation to the plaintiff. However, this decision was
quashed on Appeal on the ground that no cause pf action was established. The
Supreme Court per Idigbe J.S.C. conceding with the position of the Appellant Court
disallowed the financial award made by the trial court.
[8] Section
22(1) of the FEPA (supra).
[9] Supra
p.29
[10] [1975]
9-11 SC 155 p.172 – 173S
[11] [1965]15
West Indian Reports (W.I.R) 251.
[12] [1973]
M.W.S.J. 61 Pgs 88-89