CHAPTER FIVE
5.1 Introduction
From our discussion so far, it has been made clear
that the federal government is vested with the ownership of oil deposit in
Nigeria. Crude oil, as of now, is Nigeria’s highest income earner; therefore,
the need for proper monitoring of activities in the petroleum sector of the
economy. This means that in Nigeria, mining concessions in the oil drilling
field are very serious business. Mining
concession is the grant of rights to persons or companies by a Host Country to
mine its natural resources for the benefit of the Host Country.[1]
In this chapter, we shall discuss the various ways in which
the Federal Government manages and controls its oils mineral resources and the
processes of exploitation of oil in Nigeria.
Emphasis would be laid on issuance of various licences and the Right of
way granted to the International Oil Companies (IOC). Secondly, an attempt
would be made to examine the legal position of landholders vis a vis the right
granted to the oil companies
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5.2 Federal Management and Control of
Oil Mineral Resource and Processes of Exploitation of Oil in Nigeria
The right to manage and control oil
mineral resources in Nigeria is vested in the federal government.[2] This
right is claimed to be derived from the UN
General Assembly Declaration in Resolution 1803 (xvii) of 14 December, 1962,
which provided for states sovereignty over their natural resources.
Before the coming of the Petroleum
Act, the early concessions granted were commonly referred to as traditional concession.[3] Under
this system, the contracts was lopsided in favour of the IOCs, at the expense
of the HC, because the HC knew little or nothing about the possibilities of the
resources, and were too easily satisfied with the little loyalties received
from the usually right powerful and knowledgeable IOCs. According to S.K.B. Asante[4] “The concessions
granted were instruments of blatant exploitation.”
But upon the inception of the Act,[5] the
system is now somewhat in favour of the HC.
Under this segment below we shall be looking at the various licences and
contractual agreement that Nigeria has either with these IOCs, and secondly the
right of way (ROW) granted to the IOCs.
5.2.1.1 Issuance
of Licences to Oil Companies
Under the Act, the minister of
petroleum resources is vested with the power to grant licences for oil
exploration, oil prospecting and oil mining lease, to explore, prospect, search
for, win, work, carry away and dispose of petroleum.[6] However,
it is only a Nigeria or a company registered in Nigeria under Company and
Allied matter Act (CAMA) or any corresponding law that can be granted licence
or lease.
The various mining concessions in
Nigeria include the following:
(I)
Oil Exploration Licence (O.E.L)
The O.E.L entitles the licence holder to explore for
petroleum within the area of the grant.[7] It is
important to note that this kind of licence could be granted to more than one
company (i.e to say that it is not exclusive) over the same area. This is to encourage a healthy competition
among the International Oil Companies.
(II) Oil
Prospecting Licence (O.P.L):
Unlike the Oil Exploration Licence, the Oil Prospecting
License gives the licence exclusive right to explore and prospect for petroleum
within the area of the grant.[8] This
could equally be granted in respect of onshore and offshore petroleum reserve.
(III) Oil
Mining Leases (O.M.L):
This is the highest mining concession. The oil-mining lease confers on the lessee
the exclusive right to explore, carry away and dispose of petroleum discovered
and won in the lessee’s operation, subject to the terms of the lease.[9] The
operations are mainly offshore.[10]
There were contractual agreements,
which rose from the 1969 petroleum Act wherein the International Oil Companies
partnered with the Nigerian government acting through the Nigerian national
Petroleum Corporation (NNPC). The difference between the concession and these
contractual agreements is that in the former, the international oil company run
the expropriation independently subject to terms and conditions given by the
Minister of Petroleum Resources, while in the later, Nigeria through the NNPC
partner with the international oil company in expropriation of oil.
The
contractual agreements in Nigeria include:
(1)
Joint
Venture Agreement/Joint Operating Agreement (JOA):
This is a type of contract wherein two or more
parties/partners come together to establish and set out the terms of a joint
venture between them under which petroleum exploration, development and
production operations will be conducted.[11]
The JOA specifies the legal
relationship in the area of rights, duties and obligations between the
partners.
An example of a JOA/JVA is that,
that was signed in July 1991 between NNPC and Shell p.D. The Joint Venture partnership between NPPC
and Shell PBC gad these shoves of percentage, NNPC 60%, Shell Petroleum Development Company 30%, Nigerian Agip
Oil Company 5% and ELF Nigeria 5%. Shell was the operator of the Joint Venture.[12]
(II) Service
Contracts:
These are sub-divided into risk service contracts, and
pure service contracts. In risk service contract (RSC) the international oil
company (in this case referred to as (“contractor”) bears all the risk of
reproduction. There, discovery is made in commercial quantity, the expenses
made by the contractor are recouped.[13] If no
discovery is made the contract ceases to exist with no obligation on either
parties.
RSC has been extensively used in
Brazil, Argentina and Colombia where a point of appeal appears to lie in the
fact that sovereignty over resources is assumed at all times. On the other
hand, pure service contract (PSC) is such that the state hires the services of
an IOC. The IOC performs its stipulated
services and is paid a flat fee for this service. This kind of contract exists mainly in the
oil-rich Middle East Countries, e.g, Saudi Arabia, Kuwait, Qatar, Bahrain, Abu
Dhabi.
(III) The
Production Sharing Contract:
Under PSC the company bears all the risk of
exploration and is often in charge of the operations and management of the
contract area.[14]
When oil is discovered in commercial quantities, the IOC is entitled to recoup
its investments from the crude oil produced from the contract area. An example
of a PSC in Nigeria is the one between NNPC and Ashland Oil (Nigeria) company
AON.
(IV) Technical
Assistance Agreements (TAA):
This is the newest type of agreement. It is a great departure from the traditional
concession. In this type of contract,
the IOC provides technical services without any interest in the oil at any
time. Its remuneration consists solely of a specified agreed fee. This type of agreement exists in countries
such as Iran and Venezuela.
The lessees and licences in mining
concessions owe the following obligations to Nigeria,
(i)
Payment of taxes.[15]
(ii)
To conduct their
operations continuously, in a vigorous and business like manner in accordance
with the basic work programme approved for the licencee or lessee and in
accordance with good oil field practice.[16]
(iii)
To pay all rents
fees and royalties pertaining to their concessions to the minister.
(iv)
To pay compensation
on any land entered into in exercise of their rights in the concession.
(v)
To use
geological, geophysical and any other acceptable methods of examination for the
purpose of arriving at the petroleum producing prospects, until the area has
been adequately explored for that purpose.[17]
(vi)
To keep record of
all boreholes and wells in a form from time to time approved by the Director of
Petroleum.[18]
(vii)
To report the
discovery of petroleum or petroleum-bearing strata to the Director of Petroleum
resources.[19]
(viii) To keep full
and accurate accounts of the quantity of crude oil and casting spirit won.[20]
(ix)
Training and
recruitment of Nigerians.
5.2.2 Right of Way Granted to Oil
Companies
When the Federal Government grants
concession to an IOC, to prospect, explore or mine for oil that belongs to the
Federal Government, it becomes clear to all and sundry that this cannot be
possible without encroaching on the land as oil is entrapped in land and cannot
be exploited without access to land. The
government has through legislation empowered the IOCs beyond access to oil so
as shield them from the hostility of landowners. This right is known as the Right of Way
(ROW). This right is provided for under Regulation 15(1) of the Petroleum
(Drilling and Production) Regulations which provides:
The rights and powers conferred on licensees and
lessees under the Act shall include the right subject to all applicable laws
and the approval in writing of the Director of Petroleum Resources and of other
appropriate government agencies and to such conditions as they may impose.
(a) To cut down and clear timber and under growth.
(b) To make roads
(c) To appropriate and use water found in the relevant
area and collect and impound the same, but so that in the exercise of this
right, the lessee shall not deprive any lands, villages, houses or watering
places for cattle of a reasonable supply thereof or interfere with any rights
of water enjoyed by any person under the Land Use Act or any other enactment;
(d) To construct,
bring, maintain, alter, operate, dismantle or remove:
(i)
Industrial
buildings and installation, including drilling platform engines, power plants,
flow lines, storage tanks, loading terminals harbours, jetties, piers, moles,
landing places and derricks.
(ii)
Means of
communication, including telephone lines and wireless stations.
(iii)
Facilities for
shipping and aircraft.
(iv)
Living
accommodation and amenities for the employees and workers of the licensee or
lessee, and
(v)
Other building,
installations, works chattels and effects;
(e) To dredge
(f) To search for, dig and get free of charge gravel,
sand, clay or stone not subject to any licence or lease within unoccupied state
land; on condition that
(i)
Upon termination
or prior cessation or completion of work in relevant area excavations shall be
filled in or leveled out and left by the licensee or lessee as far as may be
reasonably practicable and to the satisfaction of the Director of Petroleum
Resources in their original condition and, if so required by the Director of Petroleum
Resources, fended or otherwise safe guarded.
Section
15(2) provides that the licensee or
lessee may exercise any of his rights or powers through agents or independent
contractors, but shall be responsible for all the actions of the agents and
contractors in question.
A juxtaposition of section 28(2) of the Land Use Act
(LUA), with section 15(1) of the Petroleum (Drilling and Production)
Regulations is to the effect that statutory or customary right of occupancy
extinguishes upon the grant of oil concession to an IOC which is meant for
mining purposes or oil pipelines. This is known as overriding public
interest. However, the Governor or the
Local Government has discretion to re-settle persons displaced if the
revocation affected developed land.[21]
In spite of the provisions of section 15(1&2) of
the Petroleum regulation Act, section 16(1) grants the same power to the
Federal Government (FG) but on a wider margin when it provided for “any purpose other than those for which a
licence or lease has been granted.” The Governor of a state shall retain
the power, in respect of such parts as are state land situated within the
state, to exercise all rights conferred by law upon him.[22]
It is of note that these laws are not absolute. Therefore Regulation 17 provides protection for some area except where the
permission of the minister is sought and is granted. Such areas include, any part occupied for the purposes of the Government of the
Federation or state, township, village, market, burial ground or cemetery,
cultivated lands, grotto area, or things held to be sacred or the objects of
veneration.
The licensee or lessee shall not also hinder any
person from using any or having access to any road. However, where such person causes damage to
the road, he shall contribute to its upkeep.[23] The
licensee or lessee is also restricted from cultivating any area or using any
area in any manner inconsistent with the purpose of the rights granted under
the concession.[24]
The licensee or lessee is equally expected in his
operation to comply with the town planning laws.[25]
Similar provisions on the rights mentioned, rights and
restrictions are contained in the Oil Pipeline Act. The Act was enacted to regulate the grant of
licensee for the establishment and maintenance of pipeline incidental and
supplementary to oil fields and oil mining and purposes ancillary to such
pipelines. It provides protection for
only built up areas, cultivated lands, burial grounds or lands containing any
grave, grotto area, tree or things held to be sacred or the object or
veneration. The inference was that IOCs
could enter into other lands i.e. farming lands left farrow, forest areas etc.
without any notice to the community landlords.[26]
5.3 Legal
positions of Land Holders
5.3.1 Compensation
for Loss of Earning and grant of Right of
Way to Oil
Companies.
The granting of licensce or a lease
to an IOC gives the IOC the power over oil within the subsoil. However, for the IOCs to exercise this right,
they need to acquire rights over the surface of the parcel of land and around
the immediate geographical area in which it proposes to drill a well. The paragraph 36 of the First Schedule to the
Petroleum Act gives the people in lawful occupation or the owner of the land
right to demand adequate compensation for the disturbance of surface rights.[27]
The acquisition of surface rights necessitates the payment
of compensation to the land owner/holder or occupier for
(a)
Land per se
(b)
Items such as economic trees, cash crops, building, structures, etc on the
land, which exist naturally (“fructus naturals”) or are on the land as a result
of man-made improvements (‘Fructus indsustriales’).
5.3.1.1 Land
per se
Before the coming of the LUA, payment for compensation
was made to the individual or community owner or occupier of Land that is to be
acquired for oil operation.[28] Compensation was in the form of annual rent or
a one-time compounded payment made in respect of various terrains (dry land,
seasonal swamps, fresh water swamps etc)[29]
The arrival of LUA brought about a
great change as to the party to whom compensation is payable. The Act has vested
ownership of all lands in each state, in the Governor of the state. By this is clear, that the Governor,
according to Jobene Edu,[30] primafacie the proper party to whom
compensation will be made payable to.
However, this seems to be in
confusion in the light of paragraph36 of the first schedule to the Petroleum Act
that provides that compensation should be paid to any person who owns or is in
lawful occupation of the leased land.[31]
However; it is clear from the provision
of sections 34 and 36 of the LUA, that subject to restriction by section 34(6),
the LUA does specifically preserve the rights of persons in whom land was
vested prior to the commencement of the Act.[32] In
accordance with the Act such persons are deemed to be holders of their land as
if they had been issued with statutory rights of occupancy in the context of
urban land and customary rights of occupancy in respect of non urban land.[33]
Jobene Edu amply captured the
persons entitled to receive surface right compensation[34] in the
following way:
(a) Where the land is acquired, occupied and developed by
the lessee prior to the LUA’s effective date, compensation therefore, which may
be by way of annual rent would continue to be paid to the parties from whom the
land was originally occupied. The
reasons being that their rights were not extinguished by the LUA.
(b) Where the land is acquired by the lessee after the
commencement of the LUA; compensation is payable to the person in whom the land
is vested by the Act; such person could be:
(i)
the person in
whom the land was vested immediately prior to the commencement of the Land Use
Act; if the Land sought to be acquired is an undeveloped urban one having a
size not being in excess of a half hectare.
It should be noted however that the state Governor would be within his
rights to revoke any right of occupancy for overriding interest which includes
purpose connected with running or oil pipeline.[35]
(ii)
The Governor, if
the Land (in an urban area) is shown not to be vested in any person or any community
as at the date of the commencement of LUA.
Also the Governor will be entitled to receive compensation if the land
is in excess of half a hectare of
undeveloped land permissible by section
34(5) LUA
(iii)
Local Government
in the cases to which section 6(1)a LUA
is applicable.
The quantum of compensation is the same both before
and after the coming into effect of the LUA.
The quantum is the market value of such land. Consideration is also
given to its remoteness or closeness to urban area.
5.3.1.2 Items
that Exist Naturally or as a Result of Man-
Made
Improvements:
(a) Items Naturally Found on the Land
(Fructus Naturales):
These are those items that mainly grow naturally on
the land without cultivation. These
include protected trees like Obeche,
Iron wood, Mahogany, Abura, Iroko and most other trees with forest
reverse. These trees can only be cut or
taken away by the lessee with the consent of the state authority that
established the forest reserve by law.
Productive trees like raffia palms, palm trees, mangrove trees etc that
can grow without cultivation are also included in the naturales.[36]
Compensation for protected trees is
to be the Area Forestry Department of the
State Ministry of Agriculture. While compensation for productive trees is
paid to the individual. Although,
sometimes this compensation will accrue to the community on the basis that it
has not been improved by any individual.
(b) Man-made
Improvement (Fructus Industriales):
These are those improvements on the
Land, which were made by man. Such improvements include; cultivated crops;
animal traps and fences; damned locks and
canals; farm wells; fish basket fences; poles; stakes; traps and fishing gear;
houses and huts, shrines, sacred bushes, forests and venerated objects,
machinery and plants, yam stakes etc.
Compensation for this man-made
improvement is paid to the individual occupier or owner of such land. Payments are also made to communities where a
community’s shrine, juju tree or venerated object or bush is involved.
5.3.2 Compensation for Pollution and
Danger to
Livelihood:
Oil pollution is that pollution that comes from oil
and gas operation. Since the discovery
of oil in commercial qualities in Nigeria, it is not surprising that pollution
and the resultant environmental degradation have become serious problems in
Nigeria. Hence the effect of wastes from
the petroleum industry is usually far reaching and very alarming.[37] In Otuku & Ors v. Shell BP39a
it was alleged that: Large quantities of oil escaped from the well of the defendants
polluted their drinking water, killed their fishes and marine life, desecrated
their “juju” shrines which is the only medium the villagers communicate with
their gods and ancestors.
The census of this pollution have
been identified to include among other surfaces; any stage of the oil industry
operation, gas flaring, equipment failure, sabotage, human error, corrosion
blow-out, engineering errors, natural causes, acts of other parties, erosion,
accident.[38]
To contend with these situations,
Nigeria under her Petroleum Act 1969[39]
generally empowers the minister to make regulation for the prevention of
pollution of watercourse and the atmosphere that is a clear environmental
protection provision. However, experts
see Regulation 25 of the 1969 enactment as an omnibus provision. It is argued that these provisions suffer
some defects based on the fact that:
It is exclusively (a restrictive provision); and the
duty imposed on the polluter is neither clearly legal nor clearly moral. If the duty is meant to be legal, then it is
vague to merely require the operator or licenses “to take prompt steps to
control, and if possible end it,”[40]
Omaka maintains that regulation 36
did not define “good oil field practice” which it asked the workers to be
guided by. The understanding and
definition of this term will no doubt assist in its implementation.[41]
Regulations 38 and 39 enjoin
operators to use approved methods and practices for the production of oil and
gas, and for confining petroleum respectively.
This, more or less, is a morally persuasive provision. It therefore shows that these provisions have
very low legal strength.
Other statutes for the protection of
the environment include interalia
Federal Environmental Protection Agency (cap 131), Harmful waste (special
criminal provisions etc) Act (cap 165), oil Pipeline Act, Oil in Navigable
Waters Act (cap 06).
Various states also have promulgated
laws on environmental protection notably Delta State Pollution Compensation Law
1995, Bayelsa State Pollution Compensation Tax Laws 1998, River State Pollution
Compensation Tax Laws of 1994 etc. these laws basically stipulate that apart
from reporting any oil spillage to the Community Relations Committee,
established under these laws, within 48 hours of its occurrence, the law
imposes 10% withholding tax on the gross amount payable as pollution
compensation to any pollution damage claimant.
However, on the issue of
compensation, existing statutory provisions, legal or extra legal, do not
adequately cater for individual victims of oil pollution.
A person whose property, farm or
fish pond is destroyed or damaged as a result of the activities of the oil industry
has a lot to contend with for him to get legal redress.[42]
Compensation is the next available right the individual has in the oil
pollution cases. This remedy has been trivialized
by the fact that oil operators are quite aware of the fact that it is highly
unimaginable for the courts to grant an injunction against oil companies to
stop oil activities. People have usually relied on Regulations 36, 21 and 23[43] which
provides that on the occurrence pollution, that the operator should pay fair
and adequate compensation to the victims.
What does “fair and adequate
compensation” mean? Who determines what “fair and adequate compensation” is? Is
it at the point of view of the victim or the culprit? These and more questions
arise when the aggrieved person wants to lay claim to his rights under the
statutes. Sections 20 of the Oil
Pipeline Act recognize the right of any person to compensation who may have
injuriously suffered harm or damage as a result of any breakage of, or leakage
from the oil pipeline or any of its ancillary installations.
It is now quite obvious that Nigeria
is yet to evolve an adequate compensation regime along with feasible regulation
on petroleum waste management and control.
For instance, under the law, the financial sanction that is usually
levied against polluters’ makes compliance with environmental regulations
subject to election. Imagine that, the
fine for failure to install oil pollution prevention equipment and for
discharge of oil in Nigerian waters is not to exceed N2000.[44] Breach of duty to keep record of pollution or
oil spillage is at the fine of N1000.[45] Failure
to place oil reception facilities as demanded by law attracts a fine not
exceeding N200 for each day during which the default continues.[46] Section 10, places a fine not exceeding
N400 on failure to report discharging of oil into waters of a harbour. Commenting on this issue, Yinka Omorogbe[47] had
this to say: “A fine of N100 is
laughable and can only deter the very poor members of the population and
certainly not oil corporation…. Even “high” fines of N20,000 cannot be said to
be deterrent to oil companies.”
From our exposition so far, it is obvious that all
penalties throughout the Act and its attendant regulation and subsidiary
legislations and the oil in Navigable Waters Act are grossly inadequate, in
some cases non-feasible and at times impracticable. That is to say, on the face
of the Nigerian environmental protection legislations, its provisions on waste
management and prevention of pollution are very impressive, but on the other
hand, the implementation of these provisions for sustainable development still
leaves much to be desired.
However, on the award of damages or
compensation, when this pollution occurs, the couching of the statute makes
proof difficult to entitle the individual for compensation. The situation is no less easy for claimants
when they elect to go to court to seek redress.
They even meet with more strict bottlenecks. The victims, instead of going through the
Petroleum Act, often opt to go through the law of tort. This is because the Act requires high level
of proof of the scientific aspects of petroleum operation of which the victims
are usually untutored in. Therefore,
their actions are often brought under nuisance, negligence or under the Rule in
Rylands v Fletcher. Except for the
latter, victims of the first two modes and average claimants are usually
frustrated in oil spillage cases. Under
the tort of negligence, the burden of proof is put on the plaintiff; and this
burden is always difficult to discharge without special knowledge, which an
average plaintiff lacks. In the case of Anthony Alubin v Shell BP[48]
where the chemical from the defendant’s pipelines escaped and destroyed fishes
in the lake and farmlands belonging to the plaintiff, the Court held that the
plaintiff could not had failed to prove any negligence on the part of the
defendant leading to the escape.
In public nuisance cases, the major huddle the
plaintiff must cross to prove not only that he has an interest in the land in
question, but also that he suffered over and above any damage suffered by the
general public.[49] The position is no longer good law in Nigerian
legal system; individuals can now sue in public nuisance.[50]
However, it appears as Omaka noted
that an individual’s best bet lies in suing under the rule in Rylands v Fletcher for non-natural use
of land. In Otuku v Shell-BP[51]
and Umueje v Shell-BP the plaintiffs
recovered damages for the escape of oil wastes which damages the plaintiff’s
drinking well and fish pond killing fishes respectively, under the rule.
It is apparent that the courts can
award damages, but the award is one thing, and the quantum another. Unfortunately, the damages awarded by our
courts are usually insignificant and not worth the trouble.[52]
From the foregoing, it is apparent
that the individual claimants do not have easily available statutory or common
law protection. In cases where
compensation or damage is to be awarded efforts should be made not to unduly
trivialise them. This is because of the
effect of oil pollution on the environment, which we shall now examine.
5.3.3
Effects of Oil Pollution on the Niger Delta Environment.
I pity you young people and those that will be born
after you because the good things we enjoyed when we were your age are no more
there. We used to drink fresh water from our streams, eat fresh and tasteful
food from our farms and breathe fresh air.
We didn’t know what hospital is because we were always healthy, we eat
variety of food and animals and we related with our nature. This is not the case in your generation. You people are suffering but you think you
are enjoying; all the streams are spoilt, all the food products from the farms
now have bad taste and odour if they have not disappeared totally, Most of our
animals have disappeared, you are now regular customers to the hospital and
diseases we never heard of before are now your bedmates. I really pity you, for me I will soon go to
join my ancestors and leave you and your problems.[53]
This is a true picture of the state
of environmental degradation in the Niger Delta. Environmental groups accuse the oil companies
of operating double standards, allowing practices in Nigeria that would never
be permitted in North America or Europe, although the oil company denies this
assertion, but they admit that their facilities in the Nigeria are in need of
upgrading.
The tragedy of oil pollution lies in
the fact that land generally should be protected to sustain both the current
generation and the generation yet unborn.
The devastation of the land leaves no legacy for the future generation
that would be saddled with sterile land, lakes and rivers. The rejuvenation of the land normally will
take a very long process and the possibility of restoration of the land to its
natural state would be almost impossible.
There is no gainsaying the fact that oil spillage constitutes hazards on
the environment and utmost care must be taken to curtail to the barest minimum
the incessant and frequent oil spills.[54]
For the people resident in the
Niger-Delta, survival is a daily miracle.
Everyday, they wake-up hoping that they would be lucky enough to make it
till the end of the day, for within 24 hours any thing can happen, a man you
see in the morning can die before nightfall, and the cause of death might be as
little as headache, or you could just feel like taking a cup of water and from
there develop some complications which can result to death. This is because everything that makes life
safe in the region is polluted; the air they breathe is polluted, water they
drink is polluted. The ponds where they
fish are polluted; therefore the fishes, which they eat, are polluted. Even the houses they live in are polluted
right from the rooftop to their very foundation.[55]
In view of devastating impacts, left
behind by oil spills Chief Dr. Robinson Briggs, a native of Oloibiri holds that
oil has been a curse to the indigenes of the Niger-Delta, and a shame on Africa
and compared the story of oil in Niger-Delta to that of a crawling snail picked
up by a hunter who brings out the meat inside, and throws the shell carelessly
away. According to Chief Tom Tompolo[56] who
spoke to Vanguard group who visited
his community,
I have been on this land since when I was born; I am
more than 90 years old. I am as old as this town. When I was young, things were
so much easier then than now, if you set a trap to catch fish, your catch would
fill a basket and you could feed a lot of people. When the oil companies came to our land, we
thought we would enjoy more but now we are suffering. There are no more fishes in our rivers; bush
animals are no longer in our area as a result of oil exploration and gas
flaring. You have come to our land and
have seen our sorry state…. For more than 30 years, there has been no good
drinking water. No good fish and food.
We all have been suffering here since the oil companies came to this land
This phenomenon has led to the near
collapse of the traditional economy and the people displaced from their
traditional occupations, which included fishing, farming and palm oil
production and canoe construction.
There is nothing discernible to
indicate that oil companies operating in the region are subjected to any
obligation of environmental restoration in respect of numerous walk over wells,
long pipeline ways and oil pollution blighted areas so as to make the affected
land available for other economic uses. The
situation leads to a systematic loss of economically viable land to the people
of the region and the consequent reduction of their capacity for sustainable
development and intergeneration equity.
The larger implication of this is that the ability of the present
generation to manage and use prudently the natural resources of the region in
order to ensure that it does not pass unto future generations a worse
environment that cannot fulfill their basic needs is also gradually impaired.
Indeed, the question of prudence in the use of natural resources of government
and people of the Niger Delta region does not even arise. They do not own the natural resources as it
were, having been dispossessed as already noted in Chapter 2 above.
The socio-economic symptoms of the
situation are many and varied. They include the ugly scenes of infrastructural
decay, massive unemployment, youth restiveness, violent anti-social behaviour,
high crime rate, inter-ethnic conflicts and investment hostile environment in
the Niger Delta region.
So far, the means through which
people obtain remedy in court for oil pollution matters have been through the
Regulations 21 and 23 of the Petroleum (Drilling and Production) Regulations
1969, enabled by section 9 of the Petroleum Act, however, this provision is
vague and nebulous, and characterized with petroleum technicalities, thereby
making it seldom impossible for the people to use it to ventilate their grievances.
The others include the common rules rules of nuisance, negligence and rule in Ryland v Fletcher, which are characterised
by numerous exceptions that tend to make them impotent.
To save the soul of the Niger Delta
and her peoples, this work, recommended that oil pollution cases should now
come to court by way of the through Fundamental Rights (enforcement procedure)
Rules 2009. The rules are quite liberal.
This is because the 1999 Constitution of the Federal Republic of Nigeria
guarantees every one’s right to life and dignity of human person in its section
33 and 34 respectively. The constitution
in its section 46(1), and Order II Rule I of the Fundamental Right (enforcement
procedure) Rule 2009 states that any person who alleges that any of his right
“has been, is being, or is likely to
be infringed, may apply to the court in state where the infringement occurs or
is likely to occur for redress.
We therefore submit that oil
pollution, spillage and gas flaring are of such a nature as likely to infringe on a person’s right
to life. Secondly, when people living in
the Niger Delta Islands and rural communities are unconditionally subjected to
drink polluted water, eat polluted food, breathe polluted air and are exposed
to diseases, is likely to infringe
on a person’s right to life; and the scenario is of a nature demeaning to human
nature, and therefore, likely to
infringe on the individual’s right to dignity of human person.
Therefore, people can approach the
court under Fundamental Right (enforcement procedure) Rule 2009 on oil
pollution and gas flaring cases because is of such a nature to infringe on
person’s right to life and dignity of human person.
[1]
Jobene Ebu; Obligations, Rights and claims in mining concessions, A seminar
paper delivered to the 2003/2004 cem class of Obafemi Awolowo University, in
energy and natural resources law, (2004) p.4
[2]
Ibid
[3]
Ibid
[4]
Ibid
[5]
Petroleum Act 1969
[6]
Section 2(1) Ibid
[7]
Paragraph 2 of the First Schedule to the Act of 1969.
[8]
Jobene Ebu, (Supra) p. 6
[9]
Ibid p.7
[10]
Ibid
[11]
L. Atsegbua: Oil and Gas in Nigeria;
theory and practice: 2nd Ed. (Lagos New Era Publication 2003) p.91
[12]
Ibid
[13]
This payment could be cash, but is mainly in crude oil.
[14]
Y. Omorogbe: The Oil and Gas Industry: Exploration and production contacts
(Ibadan Malthouse Press Ltd. 2001) p. 59
[15]
Section 2 Petroleum Profit Tax Act 1959
[16]
Section 24(1) Petroleum Act 1969
[17]
Section 30 Ibid
[18]
Regulation 48 Ibid
[19]
Regulation 49, Ibid
[20]
Regulation 51, Ibid
[21]
Section 33 (1&3) of LUA
[22]
regulation 16(2) Petroleum Regulation Act
[23]
Regulation 19 Ibid
[24]
Regulation 20 Ibid
[25]
Regulation 18 Ibid
[26]
Section 6 and 15 Ibid
[27]
Jobene Edu, Op. Cit P. 22
[28]Paragraph
36 of the First Schedule to the Petroleum Act
[29]
Jobene Edu, op. cit p. 23.
[30]
(supra)
[31]
Supra)
[32]
This is deemed right discussed in page 42 of this work.
[33]
Etikerente (spura)
[34]
Jobene Edu; Op. cit pag. 25-26
[35]Section
28(2) (c) of the Land Use Act, 1978.
[36]
Jobene Edu; Cit Op.
[37]
C.A. Omaka; Oil and Gas Pollution and the Nigerian Environment: The legal
control (Unpublished).
170a Cited in Omaka (supra). P. 2
[38]
C.N. Iefeachi & J.N. Nwankwo in “Petroleum Industry and the Nigerian
environment” 1985 P. 109. cited in Omaka (supra)
[39]
Section 9(1) (b) 11
[40]
C.A. Omaka, (Supra) P.7
[41]
Ibid
[42]
Yinka Omorogbe “Laws regulating the rights of individuals to compensation for
injuries suffered as a result of oil industry activities” in an NNPC/UNIBEN
Seminar at the P.T.I, Warri 6-7 September 1989.
[43]
Petroleum (Drilling and Production) Regulation
[44]
Section 1,3 and 5 of Oil in Navigable Waters Act.
[45]
Section 7 Ibid
[46]
Section 7 Ibid
[47]
Yinka Omorogbe, op. cit.
[48]
(Unreported) suit No. UHC/48/47. Ughelli
High Court delivered on 12/11/74
[49]
Amos v. Shell. Bp (Unreported) Suit No. PHC/45/1972
[50]
Adediran v Interland Transport (1991) 9 NWLR (pt. 214) pg. 155 at 16
[51]
(Supra)
[52] Omaka Op. cit P. 36
[53]
The words of the Oldest man in Otugichi
Town in Ogbia LGA of Bayelsa State
to Journalists from Netherlands
and Britain.
[54]
Odidiwe C.F., “Oil Spillages and the Nigerian Environment: An appraisal;”
Nigeria Environmental Law Review Vol. 1 No. 2,(Abakaliki, Kingdom Age
Publications 2010) pg. 50.
[55]
Ibid.
[56]
Okeowo Blessing (2002) Heaven and Hell, side by side in the Niger Delta.