ABSTRACT
This
paper seeks to explore the agitation for resource control in Nigerian
Federalism, its implication and challenges. The frame work of this paper is the
legal analysis of ownership and control of natural resources, as it relates to
the delimitation of maritime boundaries, in the case of the coastal states,
with respect to the determination of the seaward extension of the land
boundary. The introductory aspect of this paper discusses federalism and the
dilemma of resource sharing. This section also gives a brief but concise
background to the agitation for resource control. Following this introductory
section, the second section gives a detailed summary of the offshore boundary
case involving the ATTORNEY GENERAL OF
THE FEDERATION V. ATTORNEY GENERAL ABIA
STATE & 35 ORS. The third section
discusses controversial issues arising from the Supreme Court’s decision in
the offshore boundary case. . The fourth section presents a brief analysis of
the aftermath of the Supreme Court’s decision. Next is the discussion on
specific challenges posed by the struggle for resource control and appropriate
policy responses. The last section concludes this paper, by making suggestions
and recommendations.
INTRODUCTION
Generally, a resource may be seen
as a useful material or substance. Technically, it refers to the positive
interaction between man and nature, as a means designed to satisfy some given
ends: wants and social objectives. From this perspective, a resource is a
social relation having two basic attributes-utility and functionality. The
essence of a resource is its functionality, rather than ‘the thing itself’[1]
The offshore boundary case,
basically deals with the legal aspect of ownership and control of natural
resources in Nigeria.
There are several bases for
classification of resources; however, this paper is primarily interested in
that of ownership. Though a technical distinction exists between resource and
wealth, many of the concepts of resources, with the prominent exception of
ubiquitous resources, are reducible to their monetary or financial basis. When
nations or regions within nations struggle for the control of a resource, they
struggle not for the resource in itself, but for its material or financial
value. Reference to ‘state resource’ thus conventionally refers to tax and
non-tax resource or revenue.[2]
In many countries of the world,
problems of ‘resource scarcities’, and the associated ‘race’ for or struggles
over such resources have recently emerged as Sources of conflict with dire
consequences both for the political system and for the management of the
national economy.
This
is so for the growing number of oil and gas producing countries in Africa,[3] many of which face acute
challenges relating to the problem of diversity and structural arrangements
necessary for the effective harnessing and equitable sharing of this resource.
Nigeria is a nation located on
the Western Coast of Africa, with a coastline of about 853 kilometers[4] and has a federal
structure of government, made up of the central Federal Government and 36
states, eight of which are located on the coast (herein after referred to as
the littoral states).[5] Its offshore belts are
blessed with extensive oil and gas fields, mostly on its Continental Shelf.[6] These offshore fields are
presently being explored and exploited through contractual arrangements between
the Nigerian government, through its State Petroleum Corporation (SPC), the
Nigerian National Petroleum Corporation (NNPC), and various multinational oil
and gas companies.
Under Nigerian
law,[7] the ownership of natural
resources is vested in the Federal Government. However, the 1999 Constitution[8] provides a revenue formula
whereby states with natural resources being exploited within their territory,
are entitled to a certain percentage of the revenue accruing directly to the
federation account from such exploitation.
In Nigeria, states and local
governments mainly depend on statutory revenue transfers from the Federation
Account, presided over by the Federal Government, which also gets the largest
share. The Federal Government itself is over 80 percent dependent on revenue
accruing from the valorization of crude oil in the world market. However, only
a few states in the southern part of the country, the Niger Delta region, produce
oil.
The return of democracy in
Nigeria has emboldened, in particular, the oil producing States and, in
general, the States in the southern Nigeria which share similar grouses, to
mount a vitriolic campaign for the control of their “God given” resources.
Moreover, the clamour for
resource control had dangerously polarized the nation. The governments of the
17 Southern States had pitted, not just against the Federal Government but also
against the 19 Northern State Governments. The latter regarded the agitations
of their southern counterparts as ‘unrealistic and even ‘treacherous’.
Essentially there was a gross politicization of the problem, as a result of
which the federal government, the major beneficiary of the status quo,
instituted a legal suit at the Supreme Court, inter alia, to seek a correct
interpretation of section 162(2) of the 1999 constitution of the Federal
Republic of Nigeria, which relates to inter-governmental revenue sharing.
The politics of resource control
in Nigeria is complicated by the coincidence of the structure of the conflicts
with the geography of Nigerian ethnicity. The oil producing communities are
mainly ethnic minorities in the south.
If all parts of a federation are
equally endowed with resources, the problem of financial transfer would
probably not arise. Usually, in a federation, this imbalance makes it necessary
to transfer resources to depressed areas in order to maintain certain minimum
national standards. The arguments for financial transfer to sub-national levels
of a federation thus include: ‘balancing’, ‘equalization’, and ‘incentive’. A
specific formula is often designed, using designated principles or criteria to
which values are attached, to ensure an optimization of contending interests
while achieving maximum rate of national development. One such criterion is
derivation.[9]
‘Derivation’ means that a sizeable proportion
of revenue receipts form particular natural resources should be given back to
the state(s) from which such natural resources are derived.
Virtually, all
the States of the Federation have at least one form of natural resources. The
problem is that natural resources deposit in some States are not in commercial
quantity to the extent of attracting Federal Government attention and, even
where such natural resources deposit are in commercial quantity, there may be
lack of international demand for them or their international market price may
not be high enough to attract Federal Government investment. Presently, Federal
Government’s focus is on crude oil because of the high foreign exchange earning
it is deriving from sales of crude oil. Incidentally, the bulk of Federal
Government exploration and exploitation of crude oil is in the Niger Delta
States.
The transfer of funds within a
federation is a potent weapon. It can
help in ensuring that all parts of the federation have resources to carry out
their developmental functions. The government can thus ensure that the revenue
from resources located in a part of the country is used for the benefit of all
parts. To this extent, revenue allocation can foster national integration.
However, when misused, it engenders political altercations and contestations
which destabilize the political economy and tend to undermine the efficacy of
federalism in fostering political accommodation and economic development. This
underlines the important role of the federal government because the state can,
and does, often intervene in the play of forces.[10]
The concept of resource control
means many things to different persons. Some understand it as a total take-over
of the resources located in an area or state by the people of that area or
state. Others understand it to mean that the stakeholders in the resource area
should manage greater proportions of the resources harnessed in those areas. As
used in the Nigerian debate, the term has evolved as an emotive and nebulous
concept laden with sentiments, subjectivity and phobia. Its highfalutin usage
complicates understanding. Nevertheless, the concept of ‘resource control’ may be
taken to mean:
The substantive powers for the community to collect
monetary and other benefits accruing from the exploitation and use of resources
in its domain and deploy same to its developmental purposes.
Where
the community is self-ruling and homogenous, this power is inherent and
automatic. When the community is part of a larger nation-state, the power and
its extent has to be mediated by the principle of fiscal federalism.[11]
However, often
because of the inequities in the distribution of resources and the
politicization of the principles governing resource sharing, which work to
benefit some areas to the detriment of others, there is the clamour for
resource control. Evidently, the pattern of distribution of resources depends,
in part, on who controls the resources and how this control is exercised. From
this point of view, agitations for resource control are not only an integral
part of the problematique of fiscal federalism, but are, in fact, central to
the actualization of socio-economic rights in society.
The lack of
Federal Government and the Multinational Oil Companies (MNCs) operating in the
communities where crude oil is located to adequately develop and curb environmental
pollution resulting from the activities of MNCs provoked the politics of
minority marginalization which prompted the desire by the State especially the
Niger Delta States to own and control natural resources found in their
respective territories. This desire is fuelled and maintained by the fact that
Nigerian politics is largely based on lack of trust among the elite of the
various ethnic groups in Nigeria. Also, each State regards natural resources
found in its territory as its natural endowment, which should be used for the
benefit of its indigenes.
This phenomenon is not only
common in Nigeria alone but persists in almost every country operating
federalism as a system of government. It is common both in developed and
developing countries. The trend in most developed countries is for the units of
the federation to own natural resources found in their respective territories
but pay taxes to the Federal Government. The reverse is the position in
developing countries. In Nigeria, the problem of ownership and control of
natural resources become more complicated with the introduction of
on-shore/off-shore oil dichotomy by the Federal Government without the
concomitant definition of the precise boundary of Seaward States in Nigeria.[12]
The problem of
who controls the natural resources found in the States that constitute the
Federal Republic of Nigeria was first made a topical issue during General
Yakubu Gowon’s regime and sustained by all subsequent military regimes. In
1969, Gowon vested all minerals in the country under the control of the Federal
Government. He later promulgated the Off-shore Oil Revenues Decree whereby the
rights of the Regions (later States) in the minerals in their continental
shelves were abrogated and the ownership and title of the territorial waters
and continental shelf as well as royalties, rents and other revenues derived
from or relating to the exploration, prospecting or searching for or winning or
working of petroleum from seaward appurtenances of the States become vested in the
Federal Government. Unfortunately the concept of absolute control of natural
resources by the Federal Government was not common to the military regime
alone.
The concept was constitutionally
provided for in the Constitution of the Federal Republic Nigeria 1979 and
recently, the 1999 Constitution unambiguously reaffirms Federal Government’s
absolute ownership and control of all natural resources in Nigeria. States
government having woken up from their slumber decided to take the Federal
Government to task on this vexed issue. Anticipating the negative consequences
of the State’ Government action, the Attorney General of the Federation (AGF)
sought constitutional solution to the problem.[13]
THE
CASE
On February 6,
2001, the AGF filed a suit No. SC.28/2001 in the Supreme Court of Nigeria
against the 36 States of the Federation in response to the claim of the
littoral States that natural resources located offshore ought to be treated or
regarded as located within their respective territories. The AGF prayed the
Supreme Court to determine the seaward boundary of a littoral State within
Nigeria for the purposes of calculating the amount of revenue accruing to the
Federal Account directly from any natural resource derived from that State
pursuant to section 162(2) of the 1999 constitution.
ISSUES
INVOLVED IN THE CASE
A critical
analysis of the AGF and the 36 States Government claims revealed that the real
issues canvassed by them for the determination of the Supreme Court were:
1)
The
determination of ownership and control of natural resources in the Nigerian
territorial waters, EEZ and the continental shelf. In other words, the Supreme
Court was to determine whether there is any material difference between
on-shore and off-shore natural resources with regards to ownership and control
especially in the light of section 162(2) of the 1999 constitution.
2)
Predicated
on the AGF joining all the 36 States of the Federation in the suit, the
determination between the Federal Government and the 36 State Governments: who
owns the natural resources found in the respective States of the Federation.
3)
The
jurisdiction of the Supreme Court over the case.
4)
Whether
the onshore/offshore dichotomy should still be applied in revenue allocation in
Nigeria.
The AGF in support of his claim
relied on the following legal grounds:
1)
The provision of the Territorial
waters Act[14]
as amended.
2)
That the natural resources
located within the EEZ and the continental shelf of Nigeria are subject to the
provisions of any treaty or other written agreements between Nigeria and any
neighbouring littoral States, hence are derived from the Federation and not
from any State
While
on its face the determination sought by the federal government appears to be
restricted to merely resolving the seaward boundary of the littoral states, a
careful reading of the statement of claim, where in certain paragraphs the
federal government averred that natural resources located within the offshore
bed and the federal capital territory should be deemed to be derived from the
federation and not any state,[15] the actual dispute was as
to the ownership of such offshore bed as between the littoral states and the
federal government.
On 5th April, 2002 the
Supreme Court of Nigeria delivered its decision, its judgment in this case was
a novel point in Nigerian jurisprudence. The Supreme Court found no concrete
help from the Nigerian Territorial Waters Act (TWA),[16] the Exclusive
Economic Zone Act (EEZA),[17] the Sea Fisheries Act
(SFA),[18] or any Post-Independence
Legislation. Rejecting the attempt by the counsel to the federal government to
rely on the TWA, EEZA and SFA, to support his argument on the seaward boundary
of to littoral states the Chief Justice of Nigeria stated as follows:
“Chief
Williams has tried to show this by inference or implication under the provision
of the Territorial Waters Act, the Sea Fisheries Act and the Exclusive Economic
Zone Act, all of which made reference to the territorial waters of Nigeria.
However, with respect, none of the legislations (sic) expressly defines the
seaward boundary of the littoral States. This, in my opinion, cannot be
inferred from the legislations (sic).”[19]
Neither did the present 1999
Constitution of Nigeria expressly address this point.[20] The Court, faced with a
dearth of current legislation on this point, resorted to certain
pre-independence colonial Orders in Council to arrive at its decision. Also it
had to wade through a number of foreign cases dealing with the issue of
ownership of the offshore bed as between the central government and the unit
states. Eventually the Court, with one voice, though in some regards there were
divergent views, decided that the bed of the territorial sea, exclusive
economic zone and continental shelf of Nigeria did not form part of the
littoral states but rather “belonged”[21] to the federal
government. The decision of the court on this point appeared to have been
predicated, mainly, on the following:
·
That the boundaries of the
littoral states ended at the low-water mark by virtue of certain colonial
Orders in Council, which in the opinion of the Court were still valid laws,
limiting such boundaries to the “sea”;[22]
·
That by virtue of its nature,
these offshore zones are not part of the territory of Nigeria, but rather
extra-territorial terrain conceded to Nigeria by international law[23]
·
That since international
responsibility may arise from such offshore zones and the Constitution of
Nigeria confers on the federal government the duty of handling external
affairs, such offshore zones cannot be regarded as part of the littoral states
of Nigeria;[24]
·
That the extensive control and
management, inclusive of the powers to make laws, conferred by the TWA, EEZA
and the SFA on the federal government raised the inference that ownership of
such zones could not be vested in the littoral states.[25]
In arriving at its decision
against the littoral sates’ ownership of the Nigerian offshore zones, the Court
relied heavily on certain decisions of the English, Australian, Canadian and
American Courts.[26]
Each of the above four propositions will now be critically examined in turn.
Colonial
Orders in Council
The Supreme Court relied on
certain Colonial Orders in Council enacted between 1913 and 1954.[27] It is extraordinary that
the Court was of the view that these Orders had not become defunct, though not
expressly repealed, after over forty years of Nigeria’s independence and
chequered Constitutional history.[28]
The Orders relied upon by the
Court are the Colony of Nigeria (Boundaries) Order in Council 1913; the
Nigerian Protectorate Order in Council 1922; the Lagos Local Government
(Delimitation of the Town and Division into Wards) Order in Council 1950; the
1951 Nigeria (Constitution) Order in Council, No. 1172 and the Northern Region,
Western and Eastern Region (Definition of Boundaries) Proclamation 1954 made
under the 1951 Order in Council. The most important of these Orders in Council
appears to be the 1951 Order, which introduced into Nigeria a federal system of
government.[29]
These Orders in Council put the boundary of the various regions out of which
the present littoral states in Nigeria emerged as the “sea” (the Atlantic
Ocean). The justices of the Supreme Court then argued that as these Orders in
Council limited the boundaries of the present littoral states to the “sea”,
they therefore precluded the extension of such boundary beyond the low water
mark. In the words of OGUNDARE, J.S.C., who read the lead judgment, “One thing,
however, is clear.
If the boundary is with the sea,
then, by logical reasoning, the sea cannot be part of the territory of any of
the old Regions (out of which the littoral states emerged).” The Chief Justice
of Nigeria, for his part, to buttress this point took the definition of “sea”
in the Concise Oxford Dictionary, as “expanse of salt water that covers most of
earth’s surface and encloses its continents and islands, the ocean, any part of
this as opposed to dry land or fresh water”, and argued that the sea could not
possibly be part of the littoral states.[30] It must be pointed out
that the orders in Council did not anywhere define the word “sea”. Neither does
anything suggest on its face that the “sea” as used in the legislation is
synonymous with the low-water mark,[31] as distinct from the
high-water mark or even to the outer limit of the territorial sea, the latter
making a distinction between the landward waters (the territorial sea) and the
seaward waters (the high seas).
Further the resort to the dictionary
definition of the word “sea”, in my opinion, does not provide much assistance,
as it is restricted to only the water column. It does not in itself clarify
whether the legislature at that time intended the offshore seabed and subsoil
within national jurisdiction, where exploration and exploitation is done for
the main revenue yielding resources (crude oil and gas) in contention, to be
included as part of the “sea” or part of the “land”. Perhaps an examination of
certain historical evidence would give an indication of the intention of the
then British colonial government as regards the offshore seabed vis-Ã -vis the
land territory. It is suggested that the relevant period to determine this
intention is the period between 1951 and 1954, when the Nigeria (Constitution)
Order
in Council introducing a federal system of government and the Northern Region,
Western and Eastern Region (Definition of Boundaries) Proclamation made there
under were promulgated.[32] Such historical evidence,
in my view, would provide a good guide as to whether the colonial government,
acting on behalf of the United Kingdom, intended the offshore seabed adjacent
to Nigeria to be part of the sea or part of the land territory.
A
good point at which to start is to examine the position taken before the International
Law Commission by the United Kingdom during this period on the offshore seabed
vis-Ã -vis land territory. Before the Commission the government of the United
Kingdom appears to have endorsed the view of Sir Cecil Hurst, on the seabed of
the territorial sea, that there could be exclusive ownership of this portion of
the seabed.[33]
Further, commenting on the Report of the International Law Commission on its
Draft Articles on the High Seas, the United Kingdom, in respect of the
continental shelf, said as follows:-
“… the rights of a coastal State
over the continental shelf are of the same nature as its rights over its land
territory.”
“Her Majesty’s Government agrees
that it is for the time being impracticable to develop submarine areas
internationally; that the continental shelf is not res nullius; and that the
right to exercise sovereignty over the continental shelf is independent of the
concept of occupation.”[34]
These statements appear to
suggest that at the relevant time the then British colonial Government was
of the view that the coastal state had
sovereignty over the offshore seabed and subsoil of the continental shelf, and
also that the rights it exercised over the continental shelf were of the same
nature as those over its land territory. It is contended, in light of this that
the intention of the legislature at the time was not that these offshore
seabeds should be part of the sea, but rather be appurtenant to the land
territory of Nigeria. On 8 August, 1957 the Colonial Office notified the Governor-General
of Nigeria of this inherent rights theory, by which the offshore seabed and
subsoil was automatically deemed to be part of the land territory. In this
notification it was said “it is now fairly settled law that the shelf adjacent
to any territory is appurtenant to it in much the same way that territorial
waters are.”[35]
Subsequent
historical evidence in the form of another notification by the Colonial Office
of 10 March, 1959 to the Governor-General of Nigeria suggests a change of
position, at least in respect of the Continental shelf. In this notification it
was said that: “The Foreign Office has concluded that the wording of Article
2(1) of the Convention on the Continental shelf precludes incorporation of the
shelf adjacent to Nigeria within the boundaries of Nigeria.”[36] The question therefore
would be: what is the critical date for determining the relevant intention for
the purposes of interpreting the 1951 Order in Council and the 1954
Proclamation?
In
my view, the critical date should be pre-1959, where the relevant intention can
be inferred from the comments of the United Kingdom, the colonial State, before
the International Law Commission and the 1957 notification, rather than the
1959 notification. Even so, in 1959 the then Federal Parliament of Nigeria
enacted the Minerals Oils (Amendment) Act where for the purposes of the Act
“land” was defined as including both the territorial waters and the seabed and
subsoil of the continental shelf,[37] thereby suggesting that
land in Nigeria includes both land on the landward and seaward side of the
low-water mark.
The
more recent Petroleum Act[38] also seems to incorporate
the offshore bed as part of the land and not the sea. After vesting ownership
of petroleum in the federal government, it goes on to state that this “applies
to all land (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, or (d) forms part of the Exclusive Economic Zone of
Nigeria”. A first glance at this provision might give the impression of a
distinction between land in Nigeria and the territorial sea, continental shelf
and the EEZ, thus indicating an intention to exclude the latter as part of
Nigeria. However the reference to “all lands (including land covered by water)”
indicates that the distinction is a matter of form to differentiate between two
types of land in Nigeria, namely non-submerged and submerged land.
All
in all, it appears that at worst these Orders in Council referred to by the
Court are irrelevant, or at best they are rather ambiguous. The reliance of the
Court on those pieces of legislation to support its decision is not convincing.
It
does appear that the Court in its bid to locate municipal legislation as a
fallback over-stretched the meaning of word “sea” to be synonymous with the
“low-water mark”.
NATURE
OF OFFSHORE SEABED AND SUBSOIL WITHIN NIGERIA’S NATIONAL JURISDICTION.
After examining the provisions of
the 1982 United Nations Convention on the Law of the Sea (LOSC), including
articles 2,3,55,57,76,77 and 78, the Court came to the conclusion that the
offshore maritime zones within the national jurisdiction of Nigeria were not
part of the territory of Nigeria but some kind of extra-territorial terrain
which international law conceded to Nigeria to exercise certain jurisdictional
rights.[39] OGUNDARE, J.S.C., in his lead judgment put it as follows:
“The sum total of all I have been
saying above is that none of the territorial Waters Act, Sea Fisheries Act and
Exclusive Economic Zone Act has extended the land territory of Nigeria beyond
its constitutional limit, although the Acts give municipal effect to
international treaties entered into by Nigeria by virtue of its membership, as
a sovereign State, of the Comity of Nations. These treaties confer sovereignty
and other rights on Nigeria over certain areas of the sea (the Atlantic
Ocean).”[40]
The court was heavily influenced
by the decision of BARWICK, C.J., in
New
South Wales & Ors. V. The Commonwealth,[41] who said:
“. . . the international
concession was not that the territory of the nation, in a proprietary or
physical sense, was enlarged to include the area of water in the territorial
sea or the area of subjacent soil. Indeed, the very description ‘territorial waters’
emphasizes, in my opinion, that they are waters which wash the shores of the
territory of the nation state, otherwise regarded as ending at the margin of
the land.”[42]
TERRITORIAL
SEA
The Supreme Court, in arriving at
the decision that the territorial sea was not part of Nigeria did not address
itself to the fact that there is historical evidence to show that even as far
back as the nineteenth century certain states have claimed part of the
territorial sea as part of their territory.[43] Under international law
the coastal state is granted sovereignty over the territorial sea.[44]
Art. 2(1) of the 1982 United Nations Convention on
the Law of the Sea, 21 ILM 1245 (1982), states that
“The Sovereignty of a coastal State extends
beyond its land territory and internal waters and, in the case of an
archipelagic State, its archipelagic waters, to an adjacent belt of a sea
described as the territorial sea”.
Art.
2(2) extends such sovereignty to the airspace and bed and subsoil of the
territorial sea. See also art. 2 of the 1958 Convention on the Territorial Sea
and Contiguous Zone. In the Grisbadarna
Case,[45]
the Permanent Court of Arbitration held that when the territory was ceded to
Sweden: ‘the radius of maritime territory
constituting an inseparable appurtenance of this land territory must have
automatically formed a part of this cession’. In Utah Div. of State Lands v.
United States[46] the United
States Supreme court pointed out that ownership of submerged lands is an
essential attribute of sovereignty.[47] This raises the issue of
whether the fact that international law, both customary and treaty, confers
upon the coastal state sovereignty of the territorial sea implies ownership of
such? The Nigerian Court did not appear to have adequately addressed this
interesting (and very relevant) jurisprudential issue of the relationship
between sovereignty and ownership.[48]
The attempt by certain counsel to
the show littoral states ownership, through affidavit evidence pointing to
historical claim of certain parts of the sea by communities indigenous to such
states, was rejected by the Court as being “against the grain of statutory
instruments (Orders in Council) and the common law and international law”.[49] This issue of
indigenous community ownership of parts of the sea was however examined issn
the more recent New Zealand case of Ngati Apa, Ngati Koata & Ors. V. Ki Te
Tau Ihu Trust & Ors.[50]
In this
case the Court of Appeal, looking at the issue of sovereignty and ownership of
the offshore seabed, embarked on an interesting jurisprudential excursion of
distinguishing between territorial sovereignty vested in the Crown (imperium)
in respect of the foreshore and seabed of the territorial sea and the right of
ownership of such (dominium).
The court then went on to emphasize
the possibility of imperium being vested in the crown in respect of such
offshore zones while dominium may be vested in someone else. In this case
certain Maori native groups, the Ngati Apa, Ngati Koata, Ngati Kuia, Ngati
Rarua, Ngati Tama, Ngati Toa, Rangitane and Te Atiawa, applied to the Maori
Land Court for declaratory orders that certain land below the mean high-water
mark in the Marlborough Sounds were Maori customary lands. The Attorney General
and certain non-Maori parties filed preliminary objections to the effect that
such applications could not succeed as a matter of law, since lands falling
under the foreshore and territorial sea of New Zealand were under common law
and certain legislation,[51] vested in the Crown. The Court of
Appeal was of the view that the mere fact that the foreshore and the bed of the
territorial sea were vested in the Crown did not in itself exclude Maori
ownership of such offshore lands under native law and custom. As far as the
Court was concerned, though the Crown had imperium over such offshore lands by
reason of sovereignty this did not in itself exclude the dominion of the Maoris
over such land if there was evidentiary proof, to be laid before the Maoris
Land Court, proving such native rights.
The
court held that conferring sovereignty of such offshore zones on the Crown
under common law will only apply subject to local custom, including property
rights.
Also,
the Court was of the view that legislation vesting such offshore zones in the
crown, since it had no express expropriatory purpose, could only be read as
vesting such on the Crown subject to the preservation of existing property
interests, including Maori property rights, if satisfactorily established by
evidence.
Nigeria,
like New Zealand, as a former British territory with native population, also
received the common law subject to locate custom, including property rights.[52] The New Zealand Court of
Appeal, in arriving at its decision, quoted extensively and relied heavily on
the Privy Council case of Amodu Tijani v. Secretary, Southern Nigeria.[53] Here the Privy Council
made it clear that though Lagos and the territory round it had been ceded to
the British Crown, this sovereign right of the Crown did not in itself
extinguish the ownership rights under native law and custom. In arriving at
this decision, the Privy Council issued a warning about the tendency of trying
to understand the type title under native law and custom by trying to equate it
with concepts familiar only in English law. Accordingly, the Privy Council felt
constrained to point out that: “As a
rule, in the various systems of native jurisprudence throughout the Empire,
there is no such full division between property and possession as English
lawyers are familiar with.”
Unfortunately
the Nigerian Supreme Court, because it relied on ambiguous Orders in Council,
and also because of its reliance on the purported enunciation of the common law
by the case of R v. Keyn, did not critically evaluate the evidence tendered by
certain littoral states. These states, especially Cross Rivers and Lagos
states, gave evidence through their pleadings and affidavit evidence in support
of their attempt to establish ownership under native law and custom over these
offshore zones by certain communities indigenous to these states. As far as UWAIS. C.J.N., was concerned, though
the evidence adduced was useful it did not help in answering the question of
the seaward boundaries of these states. Without the benefit of a
critical evaluation and definite pronouncement on such evidence by the Nigerian
Court, it is difficult to say whether or not such evidence conclusively
established any customary ownership by the indigenous communities over such
offshore zones.[54]
An examination of such evidence was essential, for if such customary ownership
of these offshore zones had been established it behoved the Nigerian Court to
apply the common law subject to this customary right of ownership. If such
customary rights of ownership are established to have existed, by virtue of the
Nigerian Land Use Act, these rights have since 1978[55] become vested in the
governor of the state in which such indigenous communities are situated. This
raises the possibility that such offshore zones are vested through this means
on littoral states able to prove such ownership under native law and custom.
CONTINENTAL
SHELF AND EEZ
As regards the offshore bed of
the continental shelf of Nigeria, which overlaps with the EEZ, in so far as it
does not extend beyond 200 nautical miles,[56] the Court, while
referring to the provisions of articles 76-78 of the LOSC, appears to have
glossed over the nature of the continental shelf under international law.
Considering the novelty of a case such as this before the Court, it would have
been expected that in reaching its decision on the continental shelf vis-Ã -vis
Nigeria, the Court would have examined the historical development of the
concept of the continental shelf from the Truman Proclamation,[57] along with the numerous
decisions of the ICJ on this,
especially the 1969 decision of the North Sea Continental Shelf Cases.[58] Though these decisions
applied to disputes between nation states in the international sphere and not
disputes between component units of a federal state, it would have been helpful
if these decisions had been considered and applied by the Nigerian court in
determining the exact nature of the continental shelf vis-Ã -vis Nigeria as a
nation state. This would have guided the Court in its interpretation of the
Nigerian constitution and domestic legislation to ascertain as between the
federal government and littoral states who owns the Nigerian continental shelf.
The decision of the Supreme Court appears to reveal a court that was not eager
to embark on detailed analysis of the nature of the continental shelf under
international law.
The
Court merely restricted itself to a rather cursory reference to treaty
provisions, especially the United Nations Convention on the Law of the Sea,
without necessarily examining decisions of international courts on the nature
of the continental shelf. This in itself could be said to be symptomatic of the
fact that in respect of international law the court appeared to be on very
tenacious grounds[59]59. Perhaps
this can be explained away in the sense that Nigerian judges like most common
law jurisdictions, generally do not have a culture of international law as was
pointed out by Judge Rosalyn Higgins
when she said:-
“. . . there is another culture
that exists, in which it is possible to become a practicing lawyer without
having studied international law, and indeed to become a judge knowing no
international law.
Psychologically that disposes both counsel and
judges to treat international law as some exotic branch of law, to be avoided
if at all possible, and to be looked upon as if it is unreal, of no practical
application in the real world.”[60]
There were some glaring errors in
the statements of some of the justices in respect of international law, e.g. of
such statements are per OGUNDARE, J.S.C.,
at 651: “By the 1958 Convention the breadth of the territorial sea is a maximum
of 3 miles.” Per UWAIS, C.J.N., at
731: “It is noted that the 3 nautical miles mentioned in the case were later
extended to 12 nautical miles by the 1958 Geneva Convention on the Territorial
Sea and Contiguous Zone, which preceded the 1982 United Nations Convention on
the Law of the Sea.”
It
is trite under international law that the issue of the breadth of the
territorial sea, one of the major issues that led to the convening of UNCLOS
III, was not dealt with by the Geneva Convention but rather by the 1982 United
Nations Convention on the LOS.
However
perhaps the shortcoming in this regard of the Supreme Court, made up of many
eminent jurists, can be attributed to a shortage of resources, not least
research assistants.[61]
Since the Truman Proclamation,
the basis of a coastal State’s title to the continental shelf has been the
natural prolongation principle. This has been emphasized in various decisions
of the international courts.[62] In the North
Sea Continental Shelf Cases[63] the Court explained that:
“The continental shelf is, by definition,
an area physically extending the territory of most coastal states into a
species of platform which has attracted the attention first of geographers and
hydrographers and then of jurists.”[64]
The Court in this case went on to
state:-
“. . .
The rights of the coastal State in respect of the area of continental shelf
that constitutes a natural prolongation of its land territory into and under the
sea exists ipso facto and ab initio, by virtue of its sovereignty over the
land, and as an extension of it in an exercise of sovereign rights for the
purpose of exploring the seabed and exploiting its resources.”
In addition, the Court,
emphasizing the basis of the rights of the coastal state over the continental
shelf, points out that:
“What confers the ipso jure title
which international law attributes to the coastal State in respect of its
continental shelf, is the fact that the submarine areas concerned may be deemed
to be actually part of the territory over which the coastal State already has
dominion- in the sense that, although covered with water, they are a
prolongation or continuation of that territory, an extension of it under the
sea.”[65]
The decision in the North
Sea Continental Shelf Cases has since been supported by subsequent
decisions of the International Court of Justice including the Tunisia/Libya
Case.
While article 76(1) of the UNCLOS
82 now places an emphasis on distance, it does not detract from the continental
shelf being a natural prolongation of the land territory of the coastal State.
Article 76(1) states:
“The
Continental Shelf of a coastal State comprises the sea-bed and subsoil of the
submarine areas that extend beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the continental margin,
or to a distance of 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured where the
outer edge of the continental margin does not extend up to that distance.” (Italics mine for emphasis)
The effect of
the decisions of the international courts is that the continental shelf, to the
extent limited by international law,[66] is to be regarded as part
of the coastal state by reason of its contiguity to the landmass. Certain
African States, in line with the natural elongation principle, have enacted
legislation to the effect that the continental shelf will be regarded as part of
their territory, at least for certain limited purposes, including mining and
customs and excise. For example, the Namibian Territorial Sea and Exclusive
Economic Zone Act states that:
“The continental shelf referred to in
subsection (1) shall be regarded as part of Namibia and shall for the purposes
of (a) the exploitation of the natural resources of the sea; and (b) any
provision of any law relating to mining, precious stones, metals or minerals,
including natural oil, which applies in that part of Namibia which adjoins the
continental shelf, be deemed to be State land.”[67]
In the recent South African case
of De
Beers Marine (PTY) Ltd. V. The Commissioner for the South African Revenue
Service,[68] it was held
that the continental shelf as defined by the Maritime Zones Act[69] shall be deemed to be
part of the Republic of South Africa for the purposes of Customs and Excise.[70]
The
Nigerian Court throughout its entire examination of the continental shelf
appears not to have considered the idea of it being a natural prolongation of
the land territory of Nigeria. If the continental shelf is a natural
prolongation of the land territory of Nigeria, the issue is who owns it? This
is to be determined by the domestic laws of Nigeria, some of which will be
examined in the subsequent section.
MUNICIPAL
LAWS OF NIGERIA
The most compelling factor in
determining whether the “ownership’’ of the territorial sea, continental shelf
and EEZ of Nigeria is vested in the federal government or the littoral states
is the municipal law of Nigeria. Unfortunately the municipal law failed to
expressly deal with this issue.
The
1999 Constitution
The 1999 Constitution is the
supreme law of Nigeria; any law that is inconsistent with its provisions is to
the extent of such inconsistency null and void.[71] There are no express
provisions on the ownership of the offshore seabed as between the federal
government and the littoral states under the Constitution. However, is such
ownership implicit in the Constitution? The Constitution declares Nigeria to be
a federation consisting of states and a federal capital territory (FCT). The
FCT is the only territory vested in the federal government under the
Constitution.[72]
While the FCT is clearly defined by the Constitution in terms of precise
co-ordinates,[73]
the extent of the various states are merely defined by mentioning the local
governments areas in each state in the federation without any exact
delimitation of such.[74]The counsel for the
littoral states argued strenuously that since the offshore bed within Nigeria
national jurisdiction does not fall within the precise constitutional
definition of the FCT, it should be taken to be part of the local government
areas, which are not defined with precision, of the abutting littoral states.[75]
The
court, however, too readily dismissed the arguments of counsel for the littoral
states, in this regard, on erroneous grounds, including the contention of one
of the judges that a local government cannot exist on the sea.[76] It is my humble
submission that the Court’s decision was based on its failure to appreciate the
crucial link between a contiguous landmass and the submerged land under the
sea. Also, even if it is conceded that the boundary of the littoral states ends
at the low-water mark, this would necessarily mean that the part of the sea on
the landward of the low-water mark, which is part of internal waters,[77] will be part of one of
the local governments, combining with the others to form the contiguous
littoral state. It is my contention that there is nothing incongruous about the
territorial sea and bed of The EEZ and continental shelf being part of the
local government area’s contiguous to the sea. The Constitution, by avoiding
precise co-ordinates in describing states and local government areas, certainly
does not preclude the submerged land of the offshore bed being a part of the
local government area adjoining it.[78]
Another
point that appeared to have swayed the Supreme Court against arguments of
counsel for the littoral states was the fact that the previous 1960 and 1963
Nigerian Constitutions had made express provisions deeming the continental
shelf as part of the then regions for revenue derivation purpose, while the
current 1999 Constitution was silent on the question.[79]
As
far as the Court was concerned, the 1960 and 1963 constitution only “deemed”
that the continental shelf be part of the units solely for revenue purposes and
if this provision had not existed the revenue derived from exploitation of
resources in this offshore bed would not have been accruable to such regions.[80] It is my submission that
the silence of the 1999 constitution does not in itself lead to the conclusion
that littoral states do not have ownership of the continental shelf.
Implicitly, the 1999 Constitution, by limiting the federal territory to a
clearly defined FCT, appears to lean in favour of the littoral states’
ownership of the offshore bed, including the continental shelf.
The
Offshore Oil Revenues (Registration of Grants) Act
The argument that these offshore
seabed zones are part of the littoral states is also supported by implication
by the Offshore Oil Revenues (Registration of Grants) Act.[81] This Act states that:-
“All
registrable instruments relating to any lease, license, permit or right issued
or granted to any person in respect of the territorial waters and the
continental shelf of Nigeria shall, notwithstanding anything to the contrary in
any enactment continue to be registrable in the States of the Federation,
respectively, which are contiguous to the said territorial waters and the continental
shelf,”[82]
In
cases where there are disputes as to whether or not any instrument is
registrable in any state, such dispute is required to be determined by the head
of the federal government whose decision shall be final and binding.[83] This legislation, which
was enacted during the military regime, is still a valid and subsisting law,
though the validity of the provision giving the head of the federal government
the right in cases of dispute, presumably between two contiguous littoral
states, to make a final and binding decision, is doubtful in view of the
provisions of the Constitution that gives the Supreme Court original
jurisdiction over disputes between states.[84]
The
fact that such registration is to be done in the littoral state contiguous to
such offshore zone, rather than the Federal Capital Territory certainly weighs
in favour of these zones being regarded as part of the littoral states and not
federal government territory.
The Territorial Waters Act (TWA),
Exclusive Economic Zone Act (EEZA) and Sea Fisheries Act (SFA)
The
TWA (stating the breadth of the territorial sea and making provision in respect
of the exercise by the Nigerian courts of Criminal jurisdiction over the
Nigerian territorial sea),[85] the EEZA (regulating the
Nigerian EEZ) and the SFA (regulating fishing within Nigerian waters),
while not making express
provision for ownership of the offshore zones, were utilized by certain
justices of the Supreme Court to rule against littoral states ownership.
As
far as IGUH, J.S.C., and ONU, J.S.C., 3 were concerned, the fact
that the legislation had given extensive governmental authority and powers,
including the power to make laws, to the federal government was an indication
that ownership could not lie with the littoral states. Admittedly, a lot of
governmental authority and control is conferred by the legislation on the
federal government. For the TWA, the original legislation in 1967 had initially
given both the federal government and the littoral states, then known as
regions, concurrent powers to make laws in respect of the territorial waters of
Nigeria. But 1971, with the amendment of the 1967 legislation, this power to
make laws in respect of the territorial waters became limited to the federal
government.[86]
The EEZA, as amended by the EEZ
(Amendment) Act,[87]
vests the sovereign and exclusive rights with respect to the exploration and
exploitation of the EEZ in the Federal Republic of Nigeria, such rights to be
exercisable by the federal government.[88] It also allows the
federal government to establish artificial islands and installations for the
purpose of exploring and exploiting, conserving and managing the natural
resources in the EEZ.[89]
Under
this Act the power to prosecute for offences committed in this zone is
conferred on the Federal Attorney General and the jurisdiction to try such
offences is conferred upon the Federal High Court,[90] a Court considered to be
established by the federal government, as opposed to the State High Courts,
which are Courts of the states.[91]
The
SFA requires fishing vessels wishing to fish in the Nigerian territorial sea
and EEZ to be licensed.[92] The licensing officer is
in this Act defined as the Minister of Agriculture, Water Resources, and Rural
Development, a minister of the federal government, or any person appointed by
him.[93] Undoubtedly, these laws
confer upon the federal government extensive powers of control and management
of these offshore zones. It is however doubtful if such can be used to infer
federal government ownership of such zones.[94] Such inference is
confronted with the challenge of how such federal government ownership can be
placed within the constitutional framework limiting federal government
ownership to a clearly defined FCT, which obviously does not include offshore
zones.
As
has been argued above, the attempt by the Court to exclude such zones from
being part of Nigeria, especially the seabed portion, is not convincing.
Further the authority of the Federal government to make laws in these zones and
to exercise control and management is not based on their ownership of these
zones, but rather on the fact that such issues are placed under the federal
government’s legislative powers under the Exclusive Legislative List of the
1999 constitution.[95]
Just
as the exclusive powers to legislate over matters in the Exclusive Legislative
List of the Constitution, when exercised over the land territory of a State or
any part thereof, does not make such territory any less the territory of such
State (for instance, the mere fact that the federal government has policing
powers over the land territory of a state does not make the territory any less
that of the state), likewise the exclusive powers to legislate over matters in
the offshore zones cannot in itself be a basis to ascribe ownership of such zones
to the federal government.
A perusal of the Exclusive
Legislative List of the Constitution consisting of 68 items reveals that the
Exclusive list does not restrict the right to legislate on all matters in
respect of the territorial sea, continental shelf and EEZ of Nigeria to only
the federal government. The constitutionality of the 1971 amendment of the TWA
in the light of the 1999 Constitution is therefore doubtful.
Though the states cannot
legislate in respect of these offshore zones on, for instance, mines and
minerals, maritime shipping and navigation and defence, which fall under the
Exclusive List, nothing stops them from legislating on matters outside this list.
For
instance, nothing precludes the littoral states from legislating on antiquities
or monuments found in the offshore bed as long as it can establish that such
bed is part of the state. This is of course subject to the proviso that they
are not designated as national antiquities or monuments.[96] This in itself would lead
in a rather cyclic manner to the question before the court as to whether such
offshore bed is part of the littoral states or not? These points to the
futility of using the extensive legislative, control and management argument as
a basis for holding in favour of federal rather than littoral states’ ownership
of the Nigerian offshore zones.
Foreign
cases
The Supreme Court relied heavily,
in view of the novel nature of the case, on certain foreign cases from Britain,
America, Australia and Canada.[97] While there is nothing
wrong with obtaining guidance from foreign cases in dealing with novel points,
it is my view that these cases were either inappropriate or distinguishable
from the case before the Supreme Court.
The
Supreme Court relied very heavily, in arriving at its decision, on the
oft-criticized case of R v. Keyn,[98]
a classic example of a case where it is rather difficult to extricate the ratio
decidendi as a result of the number of judges involved and their divergent
opinions.[99]
From subsequent cases
interpreting R v. Keyn it is taken to have been decided that under the
common law the territorial sea was not part of the territory of England. This
interpretation as regards the ratio decidendi of this case was obviously
accepted by the Supreme Court of Nigeria. Even if it is accepted that this was
the position of the law at the time of the decision in R v. Keyn, it is
difficult to accept that it is still the present position of the law. Customary
international law on the territorial sea, a great part of which was merely
codified by the Law of the Sea Convention, has since the decision of that case
clarified that the coastal State’s sovereignty extends beyond its land
territory to the territorial sea.[100]Under Nigerian law, while
treaties have to be transformed by local legislation to be enforceable in
Nigeria,[101]
customary international law automatically applies as an enforceable part of
Nigerian laws.[102]
As SHAW, L.J.
in the English Court of Appeal case of Trendtex v. Central Bank of
Nigeria, rightly pointed out concerning the courts of England, which is
similarly applicable to the courts of Nigeria, “what is immutable is the principle of English law that the law of
nations (not what was the of nations) must be applied in the Courts of England.”[103] Further, the common law
position, as pointed out above, would apply subject to local conditions,
including relevant native laws and custom, including those affecting property
rights, to be established by a preponderance of evidence.[104]
Most
of the Judges of the Supreme Court appear to have been impressed with American,
Australian and Canadian cases that preferred the central government, rather
than the component units, as a result of the international responsibility
argument.[105]
The argument is to the effect that international responsibility may arise from
the offshore zones, and since the federal government, and not the littoral
states, is the repository of the function to carry out external affairs under
the constitution, such offshore zones cannot be regarded as part of the
littoral states.[106]
A.V.
Lowe has rebutted this contention.[107] He points out amongst other things that any
international responsibility is for a nation state as a whole, both central and
the component units, and the fact that the federal government is the component
organ to handle external affairs is a matter of form.[108]
He
also points out that this cannot be a basis for deciding against the units in
favour of the central government as regards offshore zones since the nation
state acting through the federal government is no more or less responsible
under international law for offshore activities than it is for onshore
activities.[109]
Any
activity, whether onshore or offshore, affecting another nation’s interest will
bring about international responsibility. Therefore if this cannot be used as
basis to impute that the littoral states are any less owners of the onshore
lands, it should in the same vein not be a basis to impute such in respect of
offshore lands. The distinction between the ownership of offshore beds and
international responsibility was recognized by the Australian legislature when
it enacted the Coastal Waters (State Powers) Act, 1980.[110] This Act, which purports
to transfer constitutional powers over coastal waters and title to seabed
minerals from the Commonwealth to the states, recognized this distinction by
stating as follows:-
“Nothing in this Act affects the
status of the territorial sea of Australia under international law or the
rights and duties of the Commonwealth in relation to ensuring the observance of
international law, including the provisions of international agreements binding
on the Commonwealth and, in particular, the provisions of the Convention on the
Territorial Sea and the Contiguous Zone relating to the right of innocent
passage of ships.”[111]
Furthermore
the decisions of these foreign cases were based upon their peculiar
constitutional history. For example the American cases following the earliest
decision of United States v. California,[112] upon a careful perusal
appear to be based largely on the equal footing doctrine.[113] This doctrine is
premised on the peculiar constitutional history of America that all states were
admitted into the union on equal footing with the 13 original colonies.
Consequently,
since there was no historical support to show that the original colonies
acquired ownership of the territorial sea, all subsequent states could not be
said to have acquired such ownership. Despite the similar presidential style of
government in Nigeria, the American equal footing doctrine, based on the unique
constitutional history of America, does not apply to Nigeria. Though the
Supreme Court of Nigeria examined the constitutional history of Nigeria by
looking at the colonial Orders in Council demarcating the boundaries of the
then regions of Nigeria, the interpretation given to such Orders by the Court
was flawed. In addition, a central common factor that appears to run through
American, Canadian and the Australian constitutional history which greatly
influenced the decisions referred to, is the fact that the component units were
in existence before merging to form a federal system of government thereby
given room for the illusion that the component units by implication surrendered
their rights to these offshore zones to the central government.
In
the case of Nigeria the situation is different, as both the federal and
components units emerged at the same time with no such implication of surrender
of rights to offshore lands.[114] KUTIGI, J.S.C., as a lone voice, though he eventually arrived at
the same conclusion as the other judges in respect of the ownership of these
offshore zones,[115] pointed out, and rightly
in my view, that these foreign cases were not exactly relevant to the Nigerian
situation.[116]
AFTERMATH
OF THE DECISION OF THE SUPREME COURT-A
POLITICAL SOLUTION
Immediately after the decision of
the Supreme Court, which had far reaching adverse financial implications for
certain littoral states, the federal government embarked on what it termed a
“political solution” to the issue.[117] The federal government
appointed a presidential committee under the chairmanship of the then Works and
Housing Minister, Chief Tony Anenih, to find a political solution to the crises
emanating from the Supreme Court’s judgment.
The
committee recommended that there should be legislative intervention in the form
of an enactment by the National Assembly that the natural resources found
offshore be deemed to be found within the territory of the adjacent littoral
state for the purpose of he application of the derivation principle.[118] In itself there is
nothing new a about legislative intervention after a rather controversial
decision.[119]
The
case of R v. Keyn, for example, resulted in legislative intervention
through the Territorial Waters Jurisdiction Act, 1878.[120] Further to the
committee’s recommendation, the then Nigerian President, Olusegun Obasanjo,
sent a Bill to the National Assembly. The purpose of the Bill, to be cited as
the Allocation of Revenue (Abolition of Dichotomy in the application of the
Principle of Derivation) Act, was to abolish the onshore/offshore dichotomy
created by the Supreme Court decision in the application of the principle of
derivation. The Bill, as originally sent to the National Assembly provided in
section 1(2) that:-
“ As from the commencement of
this Act, the contiguous zone of a State of the Federation shall be deemed to
be part of that State for the purpose of computing the revenue accruing to the
Federal Account from that State pursuant to the provisions of subsection(2) of
section 162 of the Constitution of the Federal Republic of Nigeria 1999.”[121]
In
passing the Bill the National Assembly however tinkered with section 1(2) and
replaced “contiguous zone” with “the continental shelf and exclusive economic
zone contiguous” to the littoral state. As a result of this amendment, there
was a stalemate between the President who insisted on restricting the
application of the abolition of this dichotomy to the contiguous zone, and the
National assembly, which took the view that such abolition should extend to the
continental shelf and the exclusive economic zone.
Pursuant
to the above, the President proposed, as a means to achieve a compromise, to
replace “the contiguous zone”, as contained in the original Bill, and the
“continental shelf and economic zone” inserted by the National Assembly, with
the phrase “200-metre water depth isobath”.[122] The President, in his
letter dated 5 February, 2003 to the Senate, purported to be guided by article
76 of the United Nations Convention on the Law of the Sea in making his
compromise proposal.[123] However, the 200-meter
water depth appears to be a throwback to the 1958 Convention on the Continental
shelf in which the 200-meter depth or exploitability criterion was used to
describe the continental shelf.[124] The modern law of the
sea, as contained in article 76(1) of the LOSC, utilizes the different criteria
of natural prolongation of the land territory/distance of 200 nautical miles.
It
is therefore difficult to imagine why the then President, if he purported to be
acting in line with article 76, should have any objections to retaining the
term “continental shelf”. To make doubly sure that this is in line with article
76 of the Convention, the definition section of the Act could further provide
that the term “continental shelf” as contained in the Act should be as defined
in “the United Nations Convention on the Law of the Sea 1982 or as from time to
time defined by any subsequent Convention binding on Nigeria.”[125]
After
much disagreement between the executive and the legislative arm, the latter had
accepted the compromise proposal of the (then) President. On 9th January, 2004,
the President presented the Bill, which was approved and passed by the Senate
and the House of Representatives on 20 January, 2004 and 10 February, 2004
respectively.[126]
However,
the situation in the Niger Delta has not abated. Consequently, due to the
various means the people of the area register their discontent (e.g., through
protests, kidnapping, setting of ambush, and the use of militia), some
oil-producing transnational companies, especially Shell Petroleum Development
Company (SPDC) and Mobil, have, had to occasionally declare force majeure. The
Special Committee on Oil-Producing Areas in 2002 observed that its mission ‘may
possibly be the last chance the government has to address the problem
frontally’ (FGN, 2002:2-3). The Supreme Court Judgment notwithstanding, the
demand for resource control by the oil-producing communities has continued.
CONCLUSION
The legislative intervention initiative
in the form of the Allocation of Revenue (Abolition of Dichotomy in the
Application of the Principle of Derivation) Act, 2004 was a step in the right
direction to rectify an obviously flawed decision of the Supreme Court.
However, the demarcation of the relevant maritime zones, for the purposes of
the derivation formula, cannot be arbitrary but must be based on established
principles of public international law. The derivation principle should be
extended to the continental shelf of Nigeria as defined by article 76 of the
1982 Law of the Sea Convention, a treaty that has been ratified by Nigeria.
Anything less will be mere political expediency that will derogate from the
whole essence of a legislative intervention to achieve an equitable outcome based
on well-established rules of public international law as to the nature of the
offshore zones. A resort to the 200-meters water depth isobath is a reversion
to the depth and exploitability definition of the 1958 Continental Shelf
Convention which appears anachronistic, especially in the light of Nigeria’s
ratification of the 1982 Convention.
By
and large, in Nigeria, the law is settled that the ownership and control of
natural resources is vested in the Federal Government. Individuals,
communities, Local Governments and States on or under whose land minerals are
found have no legal right to claim ownership of their minerals. In my opinion,
the crises on resource control that lead to the Offshore Boundary Case, lies
more on good governance in the Nigerian body politic. No matter the
Constitutional changes that will be made to the 1999 Constitution, if good
governance is not injected into Nigerian body politic, a day may come when the
immediate communities where natural resources are located will demand direct
ownership and control of their natural resources.
RECOMMENDATIONS/SUGGESTIONS
The Constitution Amendment
Committee of the National Assembly should as a matter of urgency present a bill
for the following:
a) The express repeal of Decree
No.106 of 1992.
b) The amendment of section 44(3)
of the 1999 Constitution to reflect that the Federal Government owns only the
natural resources in all land in Nigeria including natural resources in
territorial sea, EEZ and continental shelf of Nigeria.
c) The amendment section 3(1) and
part 1 of the First schedule of the 1999 Constitution to reflect that the
continental shelf is part of the Seaward States. This presupposes also that the
territorial waters and EEZ are part of the seaward states.
d) The extension of seaward
states’ land to the continental shelf should be without prejudice to the
Federal Government’s exclusive legislative powers over all matters relating to
territorial waters, EEZ and continental shelf of Nigeria.
It is also suggested that a
generous application of the derivation principle would provide the funds needed
to tackle the myriad of problems facing the Niger Delta people and the region
(generally) in a systematic and comprehensive manner for accelerated and
sustainable development of the region.
Furthermore,
the approach to unity and peace must not be merely cosmetic. There is the dire
need for peace and unity amongst the people of the Niger Delta as well as the
rest of the country. Without this the region may not be able to get its full
share of the benefits from the Nigerian federation.
[1] Roy, P. (1999)
Economic Geography; A Study of Resources. New Central Book Agency (P),
Calcutta. Cited in ‘Contemporary
Issues in the Management of the Nigerian Economy.’
[2] F.O. Nyemutu
Roberts (2006) ‘Resource Control” in Contemporary Issues in the management of the Nigerian Economy
[3] The list includes
– Gabon, Cameroun, Equatorial Guinea, Congo Brazzaville, Angola, Namibia,
Mauritania, and South Africa
[4] See
http//www.odci.gov/cia/publications/factbook/index.html
[5] Akwa-Ibom,
Bayelsa, Cross-River, Delta, Lagos, Ogun, Ondo, and Rivers.
[6] P.C. Underwood,
“Ocean Boundaries and Resource Development in West Africa”. Also for maps
identifying Nigerian Offshore oil wells, see
http//equatorialoil.com/pages/techview.html
[7] S. 44 (3) of the
1999 Constitution and S. 1(1) of the Minerals and Mining Act 1999.
[8] S. 162 (2) of the
1999 Constitution of the Federal Republic of Nigeria.
[9] Danjuma T.Y.
(1994) “Revenue Sharing and the
Political Economy of Nigerian Federalism”. The Nigerian Journal of Federalism.
@ Pages 43-68.
[10] Okon Emmanuel,
(2003) “The Legal Aspect of Ownership and Control of Natural Resources in Nigeria
[11] Roberts F.O.N. Op
Cit
[12] Okon Emmanuel,
(2003) “The Legal Aspect of Ownership and Control of Natural Resources in
Nigeria
[13] Ibid
[14] Filed as Suit No.
SC. 28/2001
[15] Paras. 8(c), (d),
and 9 of the Statement of Claim of the Federal Government filed on 6 February,
2001. Despite these provisions of the Plaintiff’s Statement of Claim, the
Supreme Court, after stating that the principle of derivation did not apply to
the Federal Government,, observed somewhat contrary to the Plaintiff’s case as
contained in its claim that, “… what the Plaintiff appears to be saying is that whatever remains in the
Federal account after the application of the principle of derivation, is for
distribution among beneficiaries listed in subsection (3) of section 162 (the
Federal Government, the State Governments and the Local Governments) and in
accordance with the formula approved by the National Assembly. “See OGUNDARE,
J.S.C., ABVE, N. 11, AT 653.
[16] Cap. 428, Laws of
the Federation of Nigeria, 1990, as amended by Territorial Waters (Amendment)
Act No. 1 of 1998. The effect of this amendment was to reduce the breadth of
Nigeria’s territorial sea from 30 nautical miles to 12 nautical miles. See
generally Edwin Egede, “The New Territorial Waters (Amendment) Act,
1998-comments on the impact of international law on Nigerian law”, (2000) 12
African Journal of International and Comparative Law 84-104.
[17] Cap. 116, Laws of
the Federation of Nigeria, 1990
[18] Cap. 404, Laws of
the Federation of Nigeria, 1990.
[19] Per Uwais,
C.J.N., at 721-722. However some of the Justices, IGUH AND OGWUEGBU, J.J.S.C.,
were of the view that though these pieces of legislation did not expressly deal
with the issue they were useful in deducing such by inference or implication
[20] The 1960
Constitution of Nigeria in S. 134(6) dealing with revenue allocation provided,
“For the purposes of this section the continental shelf of a Region shall be
deemed to be part of that Region.” This constitution is defunct and no similar
provision is contained in the current Constitution
[21] To the extent
permitted by international law. The Court made extensive reference to the 1982
United Nations Convention on the Law of the Sea, 21 ILM 1245 (1982), which
Nigeria ratified on 14 August, 1986.
[22] See A-G of the
Federation v. A-G of Abia & Ors, above, OGUNDARE, J.S.C. (lead judgment),
at 642-643 and 648; Uwais, C.J.N., at 726-728; WALI, J.S.C., at 771; KUTIGI,
J.S.C., at 792-795; OGWUEGBU, at 823; ONU, J.S.C., at 860 and IGUH, J.S.C., at
890-893.
[23] Ibid., OGUNDARE,
J.S.C., at 647-653; UWAIS, C.J.N., at 729-731; WALI, J.S.C., at 771-772.
[24] See, Ibid.
OGUNDARE, J.S.C., at 828-829 and ONU, J.S.C., at 856-857
[25] Ibid., IGUH,
J.S.C., at 889-892 and ONU, J.S.C., at 854-857
[26] Ibid., per
OGUNDARE, J.S.C., at 646-647; UWAIS, C.J.N., at 722; per OGWUWGBU, J.S.C., at
828-829; per ONU, J.S.C. at 857 and IGUH, J.S.C., at 892
[27] See, for example,
UWAIS, C.J.N., above, n. 11, at 725, who argued that because the 1979 and 1999
Constitutions did not anywhere repeal the definition of the boundaries
contained in the colonial legislation these Orders in Council were still valid
[28] See n. 8 above
[29] See
OGUNDARE,.J.S.C., at 642-643 and UWAIS, C.J.N., at 726-728, above, n. 11
[30] See UWAIS,
C.J.N., above, n 11, at 728
[31] See E.I. Nwogugu,
“Problems of Nigeria’s international offshore jurisdiction”, (1973) 23 I.C.L.Q.
349 at 352
[32] In Emelogu v. the
State (1988) 2 N.W.L.R. 524 at 557, a learned Justice of the Supreme Court
emphasized the importance of putting a legislation in its proper historical
background in order “to correctly comprehend the true import” of the
legislation
[33] yearbook of the
International Law Commission, 1953, vol. II, New York, United Nations, 1959, at
268-268, and C. Hurst, “Whose is the bed of the sea?” (1923-24) IV B.Y.I.L.
34-43
[34] Edwin Egede
(2005) Ownership of the Nigerian Offshore Seabed p. 78.
[35] See G. Marston,
“The incorporation of continental shelf rights into United Kingdom law”, (1996)
45 I.C.L.Q. 13, at 21-22. See the Grisbadarna Case (Norway v. Sweden), Scott
(1909), Hague Court Reports 121 at 127, which describes the territorial waters
as an “inseparable appurtenance” of the land territory
[36] Marston, ibid, at
27
[37] S. 2 of Act No. 9
of 1959
[38] See also s. 1 of
the Petroleum Act, Cap. 350, Laws of the Federation of Nigeria 1990
[39] OGUNDARE, J.S.C.,
at 647-651; UWAIS, C.J.N., at 729-731
[40] See also decision
of UWAIS, C.J.N., ibid, at 731
[41] (1975-76) 135
C.L.R. 337 at 363
[42] Ibid. quoted by
OGUNDARE, J.S.C., above, n. 11, at 652
[43] See P. Jessup,
The Law of Territorial Waters and Maritime Jurisdiction, New York, Kraus
Reprint, 1970, 115-119; 34, and V. Prescott and S. Davis, “Aboriginal claims to
seas in Australia”, (2002) 17(1) International Journal of Marine and Coastal
Law 1-31.
[44] See also Judge
Sir Arnold McNair’s dissenting judgment in the Anglo-Norwegian Fisheries Case
ICJ Reports (1951) 116 at 160 and G.Marston, ‘The evolution of the concept of
sovereignty over the bed and subsoil of the territorial sea” (1976-77) XLVIII
B.Y.I.L.321-332.
[45] (1909) Hague
Reports, 121 at 127
[46] 482 U.S. 193 at
195 (1987)
[47] See also United
States v. Texas, 339 U.S. 707 at 717 (1950)
[48] See on this
D.P.O.’ Connell, “The juridical nature of the territorial sea”, (1971) 45
B.Y.I.L 304-383 and Marston, above, n.
[49] per OGUNDARE,
J.S.C., at 652-653 and UWAIS, C.J.N. at 722-724.50
[50] (2003) NZCA 117
(19 June, 2003). Also see Australian case of Mabo v. Queensland (No.2) (1992)
175 CLR1
[51] Such as the New
Zealand Territorial Sea and Fishing Zone Act, 1965 and the Territorial Sea,
Contiguous Zone and Exclusive Economic Zone Act, 1977; Foreshore and Seabed
Endowment Revesting Act, 1991; Resource Management Act, 1991 and t he Harbours
Act 1878 and 1950
[52] Laoye & Ors
v. Oyetunde (1994) A.A. 170 at 172-173, where Lord Wright stated: “The policy
of the British Government. . . is to use for purposes of the administration of
the country (Nigeria) the native laws and customs in so far as possible and in
so far as they have not been varied or suspended by statutes or ordinances
affecting Nigeria. The courts which have been established by the British
Government have the duty of enforcing these native laws and customs, so far as
they are not barbarous, as part of the law of the land.”
[53] (1921) 2 AC 399.
[54] See Prescott and
Davis, where the writers suggested that such evidence should include detailed
knowledge of current and past members of the clan about reefs, rocks, channels, currents and
tides as well as precise knowledge about seasonal variations that occur in the
type, quantity and amount of food that can be obtained from the sea.
[55] S. 1 of the Land
Use Act, Cap. 202 LFN 1990 states that “subject to the provisions of this Act,
all land comprised in the territory of each State in the Federation is hereby
vested in the Governor of that State and such land shall be held in trust and
administered for the use and common benefits of all Nigerians in accordance
with the provisions of this Act”.
[56] See the Continental Shelf (Libyan Arab
Jamahiriya/Malta) Case, ICJ Reports 91984), 3, paras. 33 and 34. While t he
EEZ goes beyond the seabed aspects to include the water column resources and
issues, this article shall not give prominence to the latter because the
central focus of the dispute before the court was in respect of revenue from
oil and gas resources located in the offshore seabed of Nigeria.
[57] per OGUNDARE,
J.S.C., @ 655-656.
[58] Edwin Egede op.
cit
[59] I.C.J. Reports
(1969), 3.
[60] See R. Churchill
and V. Lowe, (1999) The Law of the Sea @ 77- 81
[61] R.
Higgins,(1994), Problems and Process: International Law and How We Use It,
Oxford,@ 206.
[62] There is no provision
for research assistants for the Judges under the Supreme Court Rules so they do
all their research themselves. This puts intense pressure on this rather
overworked court having, in addition to its original jurisdiction, extensive
appellate jurisdiction to hear and determine appeals from the Court of Appeal
emanating from all parts of the country.
[63] See, e.g. the
North Sea Continental Shelf Cases, above
[64] Ibid, 22 @ para.
19.
[65] Ibid., 31 @ para.
43.
[66] Article 77 LOSC
[67] S.6 (2) of Act
No. 3 of June, 1990.
[68] The Supreme Court
of South Africa, Case No.165/2001, Judgment delivered on the 20th
May 2002. See http//www.server.law.wits.ac.za/sca/files/16501/16501.pdf
[69] Act No. 15 of
1994.
[70] S. 5(b) of the
Customs and Excise Act No.92 of 1964.
[71] S.I.
[72] S.2 (2).
[73] Ss. 3(4), 297 and
Part II of the First Schedule.
[74] Ss. 3(1) and (2)
and Part I of the First Schedule.
[75] For comprehensive
summary of arguments of counsel see UWAIS, C.J.N., at 699-722
[76] KUTIGI, J.S.C.,
above, n. 11, @791-792.
[77] Art. 8 of LOSC
1982.
[78] S.3 (1) and First
Schedule Part 1 of the 1999 Constitution.
[79] OGUNDARE, J.S.C.,
at 654-655.
[80] See s. 134 of the
1960 and s. 140 of the 1963 Constitutions.
[81] UWAIS, C.J.N.,
(1990)”Laws of the Federation of Nigeria. @ 714.
[82] S. 1 (1).
[83] S. 1 (2).
[84] S. 232 (1)
[85] Edwin Egede,
(2004) “The Nigerian Territorial Waters Legislation and the Law of the Law of
the Sea Convention (LOSC) 1982”, in The
International Journal of Marine and Coastal Law @ 147-172
[86] S. 1(2) of the
Territorial Waters Act, No. 5 of 1967
[87] See para. 2 of the Territorial Waters (Amendment)
Act No. 38 of 1971
[88] Act No. 42 of
1998
[89] S. 2(1).
[90] S. 3
[91] The Territorial
Waters Act merely states “Nigerian Court” without specifying the exact court
having jurisdiction to try offences committed in the territorial waters of
Nigeria. See ss. 2 and 3
[92] S. 1
[93] S. 15
[94] The Chief Justice
rejected the attempt by counsel for the Federal Government to raise such
inference.96. See s. 4(2) and Part 1 of the Second Schedule of the
Constitution.
[95] See S.4 (2) and part 1 of the
second schedule of the Constitution.
[96] S. 4 (7) and
para. 3 of Part II of the second
Schedule of the Constitution.
[97] See R. v. Keyn
(1876) 2 Ex.D.63 (British); United States v. Louisiana 394 US 11, 699 (1950)
[98] Ibid.
[99] See O’Connell. op
cit
[100] Edwin Egede. Op
cit
[101] S. 12(1) of the
1999 Constitution and Abacha V. Fawehinmi (2000) 6 N.W.L.R. (Part 660),228
[102] See WALI, J.S.C.,
in Ibidapo V. Luftamsa Airlines (1997) 4 N.W.L.R. (Part 498) 124 @ 150
[103] Ibid. at 578
[104] See n. 48 above
and the discourse of the New Zealand case of Ngati Apa & Ors v Ki Te Tau
Ihu Trust & Ors. Above.
[105] See, e. g.,
OGWUEGBU, J.S.C., above n. 11, @ 828-829, and ONU, J.S.C., above @ 856-857,
referring to such cases as U.S. v. Louisiana, above; Reference Re. Ownership of
Offshore Minerals Rights, above, and New South Wales @ Ors. V. Commonwealth,
above, note 111. See in the case of Australia, s. 6 of the Seas and Submerged
Lands Act, 1973, as amended by the Maritime Legislation Amendment Act, 1994,
which clearly vests sovereignty in respect of the territorial sea, airspace,
seabed and subsoil thereof in the Commonwealth.
[106] See para. 26 of
the Exclusive Legislative List, Second Schedule Part 1 of the 1999
Constitution.
[107] A.V. Lowe,
“International law and Federal offshore lands disputes”, (1977) Maritime policy
311-317.
[108] Ibid. at 312.
[109] Ibid. at 313.
[110] Act No. 75 of
1980.
[111] S. 6.
[112] Above, n. 112.
[113] See also The
United States v. Louisiana, above; United States v. State of Alaska,
117S.Ct.1888(1997); Idoho v. United States, 533 U.S. (2001)
[114] Nwogugu,
“Problems of Nigerian offshore jurisdiction”, above, n. 32 at 360.
[115] He erroneously
relied on the Colonial Orders in Council. See author’s argument above
[116] Above, n. 11, @
790-791.
[117] By excluding
offshore seabed from the ambit of the derivation formula certain littoral
States such as Akwa Ibom, Bayelsa, Cross River and Ondo State, which have
virtually no onshore oil deposits but mainly offshore, are adversely affected
financially by the Supreme Court’s decision See “Supreme Court Ruling: How It
Affect the States?” THISDAY newspaper, 8 April 2002.
[118] The Committee
however felt that a long-term solution to the onshore/offshore issue raised by
the Supreme Court would require constitutional amendment. See Oma Djebah (2002)
“Resource Control: How Long Can Obasanjo Hold Out?” http://www.nigerdeltacongress.com/rarticles/resource_cpmtrol_how_long_can_ob.htm.
Under S.9
of the 1999 Constitution constitutional amendment involves a long and
complicated procedure.
[119] The National
Assembly of Nigeria, consisting of the Senate and the House of Representatives,
has the power under s.4(2) of the 1999 constitution to make laws for the peace,
order and good government of the Federation or any part thereof with respect to
any matter included in the Exclusive Legislative List.
[120] Marston, above,
n. 114, @ 138-149.
[121] See Oma Djebah
and Bature Umar (2002), “Obasanjo moves against Onshore/Offshore Dichotomy:
Sends abolition bill to N/Assembly”,
http//www.thisdayonline.com/archive/2002/09/05/20020905 news 01. Html
[122] “Obasanjo
Proposes new way out of Onshore/Offshore crisis”, The Nigerian Guardian, 26
February, 2003.
[123] Ibid.
[124] See Art. 1 of the
1958 Geneva Convention on the Continental Shelf (1958) 53 A.J.I.L. 858-862.
[125] See, e.g.,
Mauritius’ Maritime Zones Act No. 13 of 1977; Ghana’s Maritime Zones
(Delimitation) Law 1986; Namibia’s Territorial Sea and Exclusive Economic Zone
Act No. 3 of 1990 and South Africa’s Maritime Zones Act No. 15 of 1994.
[126] Kola
Ologbondiyan, “Senate Passes Onshore/Offshore Bill”, THISDAY newspaper, 21
January, 2004. See Schedule to the Allocation of Revenue (Abolition of
Dichotomy in the Application of the Principle of Derivation) Act, 2004.