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20 Jan

OIL AND GAS 2.7C POLLUTION (ENFORCEMENT AND REALITIES)

ENFORCEMENT AND REALITIES.

The fact remains that there are various Acts and Agencies which have been established to check the pollution of the environment by exploration activities and ensure safe practices. Some of which include: National Environmental Standards and Regulations Enforcement Agency (NESREA) Act[1], The Environmental Impact Assessment Act[2] Hydrocarbon Oil Refineries Act[3], Associated Gas Re-Injection Act[4], Associated Gas Re-injection (Continued Flaring of Gas) Regulation 1984[5], Harmful Waste (Special Criminal Provisions, etc.) Act[6] Section 11 Oil Pipelines Act[7], Oil in Navigable Waters Act[8] (specifically Section 7 and the Preamble), Niger-Delta Development Commission (NDDC) Act[9] (specifically Section 7), Environmental Guidelines and Standards for the Petroleum Industry in Nigeria, the Petroleum Act[10], The Harmful Waste Act[11], Federal Environmental Protection Agency Act[12] and a host of other Laws and Regulations. All of them say: “do not pollute!!!”.

The problem is that there is weak enforcement in Nigeria. This is coupled with the disheartening reality that the Nigerian courts do not regard environmental pollution issues as paramount.

The judiciary is the arm of government primarily responsible for interpreting the law[13]. But anti-pollution requirements and regulations are not strictly interpreted by the Judiciary.

Claims for compensation have been struck out by Nigerian courts on various grounds some of which include:

  1. LOCUS STANDI: simply means standing to sue. Claimants are often required to show that they have suffered peculiar damage over and above other members of the public –Gani Fawehinmi V Akilu[14]. In Amos and Anor V Shell B.P Petroleum Development Co of Nigeria,[15] NNPC V SELE Oronto Douglas V Shell Petroleum Development Company Ltd and Ors amongst others, failure to show peculiar damage was fatal to the parties claims for oil pollution. Similarly, in Shell V Otoko the court rejected the purported representative action. The position seems unchanged[16]. Scholars have argued against this in the interest of justice and the rule of law[17]. Other jurisdictions have allowed representative actions in environmental litigations (without undue reliance on the requirement of locus standi. Jurisdictions like; Kenya,[18] Tanzania,[19] Philippines[20], Canada,[21] United States29 Bangladesh India,[22] (even extended to the power to request boards to disclose housing and environmental plans).[23] However, Justice CV Nwokorie gave Nigerians hope in Gbemre V Shell32 where he allowed a suit in representative capacity.
  2. Placing Revenue above Environmental Protection: In Allar Iron V Shell BP the court refused to grant an injunction to restrain the defendant from further polluting the creeks and fish ponds on the ground that the defendant’s trade was important to the revenue of the country. In India, on similar facts, in Vellore Citizens Welfare Forum V Union of India[24] the court issued an injunction to prohibit the polluting activities notwithstanding it was a major foreign exchange earner for India. Similar stand was taken in Kinkri Devi and Another V State of Himachal Pradesh and ors.[25]
  3. Jurisdiction Issues: In Shell PDCN v. Abel Isaiah, massive spillage occurred while the defendants were repairing their damaged pipeline. The spill would have been prevented if they used an oil trap. The High Court awarded 22 million damages to the claimant (who sued on behalf of the Omuoda community Allu Kelga, Rivers State). On appeal, the Supreme Court set aside the decision relying on Ike V Nzekwe[26], Peenok Investment ltd V Hotel Presidnetial Ltd[27] and Section 251 of the 1999 constitution to hold that only the Federal High Court has original jurisdiction to entertain oil exploration and operations incidental thereto. This is right, but they should have still considered the substance of the claim which was oil pollution.
  4. Requirement of Pre-action Notice: A pre-action notice is a written communication to the prospective defendant of the prospective claimant’s intention to sue him. Statutes specify periods within which it must be served. It should contain particulars of claims, reliefs sought, residence and address of plaintiff –Section 30, 20(1) federal Environmental Protection Agency Act. Pre-Action notice was treated as a condition precedent in Mobil Nigeria V LASEPA, FEPA[28]. This often hampers oil and gas suits.
  5. Evidence: The courts have held that claims for special damages must be substantiated by evidence showing damage- Sommer and Ors v. Federal Housing Authority. Full particulars must be given- Uhunmwangbo v. Uhunmwangbo[29]. In negligence, evidential stipulations require that the claimant must also establish that the defendant’s negligence was the proximate cause of the damage- Atubn v. Shell B.P.. The cases of SPDC (Nig) Ltd v. Chief G.B.A Tiebo VII and Ors, C.C. (Nig) Ltd v. Edonwonyi42J Chinda and ors V Shell BP Petroleum Company of Nigeria,[30] are also instructive in this regard. In Umudje V SPDCN[31], the plaintiff was unable to prove escape. The court held that diversion cannot amount to escape. This makes it difficult for claimants to get compensation. Although in Royal Ade V National Oil,[32] the court held that res ipsa loquitur[33] can be used to shift the onus of proof and fasten liability on the defendant.
  6. Limitation periods: are imposed by statutes beyond which an action cannot be instituted as was seen in Farah V Shell. This hampers suits on environmental pollution.
  7. Illiteracy and poverty of the Indigenes: leaves them ignorant of their legal rights and makes them accept token-change compensation from international oil companies.
  8. Resort to self-help and Sabotage: Oil communities have been quite militant in demanding their rights.[34] Kidnapping and vandalism scared foreign investors. Kidnapping foreign expatriates (for a sum of money) and destruction of pipelines and properties of Oil companies have scared foreign investors and threatened peace in the Niger Delta. Such acts of vandalism usually leads to leakage and spillages which results in environmental pollution.

In conclusion, we need to strengthen our laws and ensure that our administration is active. This can be done by adequate funding, independence of the agencies, proper staffing and checks on fraud. The Nigerian Judiciary needs to be more resilient in the fight against environmental pollution. Bioremediation techniques can be utilised like planting Hibiscus cannabinus upon water to absorb the oil and detoxify. Satellite systems can be used to track spillages. Installation of sensors in pipelines to detect leakage.

We need to research into alternative reliable sources of energy too.

 

[1] Cap F10, LFN, 2004.

[2] Cap E12, LFN, 2004.

[3] Cap H5, LFN, 2004.

[4] Cap A25, LFN 2004.

[5] Laws of the Federation 1990. 2004.

[6] Cap H1, LFN, 2004.

[7] Cap O7, LFN, 2004.

[8] Cap O6, LFN, 2004.

[9] Cap N86, LFN, 2004.

[10] 1969 Cap P10, LFN, 2004.

[11] (1990) Cap. 165 LFN 2004.

[12] LFN, (1990) Cap. (131).

[13] Established under Section 6 of the 199 constitution and granted wide powers under Section 6(6)(b).  R (Environment Canada) V R.( Northwest Territories Canada) (1993) 12 CELR NS 55.

[14] No 2 1989 2 NWLR. Although in this case Section 24 of the African Charter on Human and People’s Right could not be applied because as at then, it had not been domesticated.  See also Adesanya V President of the Federal Republic of Nigeria (1981) 2 NCLR 5.

[15] (1974) 3 ESCLR 486. In this case, “since the creek was a public waterway, blocking it constituted a public nuisance”.

[16] Amokaye, G.O Environmental Law and Practice in Nigeria. University of Lagos Press (2004), at Page 608.

[17] Wade. W. Administrative Law. 7th Edition Oxford (1994) P. 712. Also Lord Diplock in R V Inland Revenue Commissioners (1991)CMND 1655 p3.

[18] Abdikadir Sheika Hassan and Others v. Kenya Wildlife Service (High Court of Kenya, Case 2059/1996)

[19] Festo Balegele and 749 Other v. Dar es Salaam City Council (Civil Cause No. 90/1991, High Court Tanzania).

[20] Jose Cuesta Novoa and Miciades Ramirez Melo v. the Secretary of Public Health of Bogota (May 17, 1995), Const. Ct.

[21] R V Vanicolor Chemical TRI Union Chemical of Elmira and Severin Argenton Director/Owner and Officers-(1992) 9 CEER (NS)-177, Ontario Provincial Court. SCRAP V United States 412 U.S 669 (1973).

[22] Dr Mohiuddin Farooque V Bangladesh Represented by the Secretary Ministry of Irrigation Water Resources and Flood Control and others SACEP/UNEP/NORAD Publication Series on Environmental Law and Policy No.3 Sri Lanka 4-6 July, 1997.

[23] Bombay Environment Action Group, Shayu H.K Chainani Indiana Inhabitant, Save Pune Citizen’s Committee V Pune Cantonment Board- HCJ BA Petition No. 2733.

[24] AIR 1996 SC 2715.

[25] AIR 1988 Himachal Pradesh.

[26] (1975) 2 SC 1.

[27] (1983) 4 NCLR 122.

[28] However, in In Shell Petroleum Development Nigeria Ltd V HRH Chief G.B.A. Tiebo VII and Others, the court held that it is a mere procedural irregularity.

[29] (1992) 2 N.W.L.R (Pt. 226) 709. Also, Anya V Concorde Hotel [2003] 2 MJSC 160. Royal Ade V National Oil [2004] 9 M.J.S.C 40.

[30] D. Currie Pollution Cases and Materials (West Publishers 1975).

[31] (1975) 9-11 S.C. 155.

[32] (1975) 9-11 S.C. at p.43.

[33] res ipsa loquitur literally means, “the thing speaks for itself”. It is applicable to actions for injury or death caused by negligence where no proof of such negligence is required beyond the accident itself- Julius Berger (Nig.) Plc. V. Nwagwu (2006) 12 NWLR (Pt. 995) 518 CA.

[34] Yinka Omoregbe Oil and Gas law in Nigeria. Malthouse Publishers 2004.

Isochukwu

Quite eccentric really

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