ENVIRONMENTAL LEGAL IMPLICATIONS OF OIL AND GAS EXPLORATION

IN THE NIGER DELTA OF NIGERIA

By

Orubebe Bibobra Bello

Submitted to the Faculty of the Washington College of Law

of American University

in Partial Fulfillment of the Requirements for the Degree of

Doctor of Juridical Sciences (S.J.D)

Chair Wallace 1)ouJrd ~-~

Clau~Sf-- Dean Washington College of Law

Date I 1

2009 American University Washington College of Law Washington, D.C. 20016

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by

Orubebe Bibobra Bello

2005 ALL RIGHTS RESERVED DEDICATION

This dissertation is dedicated to my late grandmother madam Omutor

Torukoro, my late father Pa Kegu Benard Orubebe, my late elder sister Mrs. Tebokeyei

Edith Johnny (nee Orubebe) in eternal appreciation of their caring support for me and for this endeavor. I also dedicate this dissertation to all those who have lost or will lose their freedom and liberty or pay the supreme price of death in order to make the core Niger

Delta dream of independent statehood a reality. ENVIRONMENT AL LEGAL IMPLICATIONS OF OIL AND GAS EXPLORATION IN THE NIGER DEL TA OF NIGERIA

BY

Orubebe Bibobra Bello

ABSTRACT

Nigeria is an African country endowed with a wealth of oil and gas

resources, and they are mainly found in the core Niger Delta (home to the ljaw and Ogoni

indigenous, ethnic minorities). Since Great Britain granted Nigeria political

independence on October 1, 1960, successive Nigerian governments (military and

civilian) have been dominated by the majority ethnic groups (Hausa-Fulani, Yoruba, and

Ibo). Significantly, the government adopted a socialist-based model of absolute state

ownership over oil and gas resources.

The socialist model formed the basis of Nigeria's business collaboration

with multinational oil and gas corporations from Europe and the United States (notably

Shell, Chevron Texaco, Agip, Exxon Mobil, Total, and Elf). This model is fraught with contradictions and has led to unacceptable consequences, including policies that allow exploitation of natural resources without reference to environmental sustainability. When oil was first struck in 1956 at Oloibori (ljaw area), people thought it would bring prosperity and an improved quality oflife. Sadly, the opposite has occurred. Forty-nine years of hardship, agonizing pain, debilitating anger, extreme poverty, poisoned rivers,

lll lV destroyed occupations, devastated environment, and stunted growth of the youth are the negative impacts of oil and gas exploitation in the Niger Delta. In other words, oil and gas exploration and production have visited a full range of evils-socio-political, economic, and cultural-upon the indigenous Niger Delta people. Furthermore, the wealth extracted from the area is used by the state and multinational corporations to enhance their own wealth and quality of life. Revenue has been conspicuously looted and misappropriated by political leaders at the expense of the Niger Delta environment and its people.

This confluence of exploitation and injury has led to social upheavals and armed rebellions, all capable of precipitating the disintegration of the country. In this dissertation, research materials have been used to identify fundamental problems inherent in the current approach to oil and gas exploration and development. Primary research findings were used to develop the recommended shift in environmental paradigm that is critical to achieving sustainable development in Nigeria. Central to the recommendations in this dissertation is a rigorous, participatory Environmental Impact Assessment ("EIA") process. ACKNOWLEDGMENT

The decision to come to the American University Washington College of

Law in pursuit of knowledge could not have been possible without the understanding and encouragement of two distinguished Americans, Simone Gregore and Chief Roger

Benedict, and my personal friends Fredrick Ndorokeme Owotorufa, George Ombe, and

Hon. H.B. Buku. In the course of writing this Doctor of Laws dissertation many individuals have offered tremendous help and encouragement. First and indeed foremost is Professor Perry Wallace who amidst his busy schedule accepted and, without equivocation, chaired the Doctoral Committee. He offered rare scholarly guidance and support. Words alone cannot convey my appreciation for the efforts of the chair and the other members of my thesis Committee, Professors David Hunter, William Cohen, and

Durwood Zaelke. Together they have given generously of their time, inspiring intellectual wisdom over the last five years, from my Masters of Laws (LLM) days

(2001) to date. Individually and jointly they challenged me with stimulating intellectual discussions and encouraged me to get it all right. You are the best Doctoral Research

Committee for which I could have hoped.

I feel deeply indebted to Professors Claudio Grossman, the impeccable

Dean Washington College of Law, and Daniel Bradlow, the Director of the International

Legal Studies Program ("ILSP"), for their dignified and extraordinary commitment to the exceptionally high quality of legal scholarship that the college and program now

IV v symbolizes in the United States of America and the world in general. I thank the ILSP

team, Irene A. Moyer, Emily Chin, Amir Tejani and Sharon E. Wolfe, for their tireless

assistance and infectious spirit of acceptance.

I remain grateful to the International Union for the Conservation of Nature

("IUCN") and the United Nations Environmental Programme ("UNEP") for giving me

the opportunity to test and cross-breed ideas cultivated in the course of this dissertation

11 with other scholars from different backgrounds in the 2 ct Academy for Environmental

Law held in the University of Nairobi, Kenya and the UNEP Symposium of

Environmental Law Professors of African Universities, held in Nakuru September and

October, 2004, respectively. They helped me meet the Doctoral Research Seminar

Presentation requirement. The diverse background of scholars that attended these

international environmental law conferences and the interactive and participatory nature

of these conferences turned out to be the much needed testing ground for some of the

central ideas that make up this dissertation.

I appreciate with immense humility and pride the reception accorded me

by the traditional rulers-their Royal Majesties of the ancient !jaw autonomous

Clans/Kingdoms-of the core Niger Delta (the study area) for generously allowing me and my research assistants into their palaces and homes on my numerous trips to these ancient traditional administrative units, sometimes without prior or requisite notices and customary libations.

I thank Mr. Thomas Torukro and Okokolo Carter for assisting me in developing rare cartographic maps, unreported Nigerian cases, parliamentary Vl proceedings, reports, and news clippings; which I would have had difficulty obtaining on my own. Hon Niki Tobi, JSC (Justice of the Supreme Court) of the Federal Republic of

Nigeria, Justice and Professor D. D. Narebor, William T. Ryan, and John Q. Heywood read and commented on the draft of the entire dissertation. I am immensely grateful to you.

It is regretted that many deserving names cannot be mentioned here but suffice to say that I owe all of them my heart-felt gratitude and appreciation. It is a truism that "Kpokene bra esangbala te ba oku keregha" (a sole finger cannot kill a louse).

Finally, despite the assistance, encouragement, and support herein acknowledged, I accept and take full responsibility for whatever shortcomings or errors that have eluded all efforts at correction in this dissertation. I shall be grateful if my attention is drawn to them. TABLE OF CONTENTS

ABSTRACT ...... ii

ACKNOWLEDGEMENT ...... iv

LIST OF TABLES ...... ix

INTRODUCTION ...... 11

1. INTRODUCTION TO NIGERIA AND THE NIGER DELTA ...... 21

Brief Political History of Nigeria ...... 21

The Core Niger Delta and the Tribal Clans ...... 39

Defining the Niger Delta ...... 48

History of Exploitation of the Niger Delta ...... 58

Implications for the Niger Delta ...... 62

2. MODERN HISTORY OF EXPLORATION, STATE OWNERSHIP AND MULTILATERAL CORPORATIONS IN THE NIGER DELTA ...... 67

History of Oil Exploration, Development and State Ownership ...... 67

Multinational Corporations and the Legal Structure of Oil Exploration and Development ...... 76

Benefit Sharing and Revenue Allocation in the Niger Delta ...... 82

Vll Vlll

3. ENVIRONMENTAL AND OTHER IMPACTS FROM OIL AND GAS DEVELOPMENT ...... 86

Acquisition of Indigenous Lands ...... 87

Exploration ...... 87

Health Impacts ...... 91

Social, Cultural and Economic Impacts of Oil Activities ...... 94

Conflict and Grass Roots Advocacy ...... 95

4. INTRODUCTION TO ENVIRONMENTAL LAW IN NIGERIA ...... 103

Sources of Environmental Law in Nigeria ...... 103

Nigerian Customary Environmental Law ...... 104

Environmental Legislation ...... 118

Nigerian Judicial Decisions on Environment ...... 120

The Received English Environmental Law ...... 122

International Treaties, Conventions and Protocols on Environmental Law ...... 125

Writings of Environmental Jurists and Publicists ...... 127

5. FOCUS ON ENVIRONMENTAL IMPACT ASSESSMENT (EIA): COMPARING NIGERIA TO THE UNITED STATES ...... 129

The EIA and its Relationship to Sustainable Development ...... 131

EIA Document Preparation ...... 135

EIA Exclusions and Exemptions ...... 139

Extent of Public Participation ...... 146 IX

Socio-Economic Impacts and the EIA Process ...... 153

Cumulative Impacts, Ecosystem Analysis and Biodiversity ...... 157

Climate Change, Terrorism, Sabotage and EIA ...... 161

EIA Imperatives Critical to the Assessment of the Oil and Gas Industry ...... 173

A Comment on EIA Reform and Recent Trends ...... 175

6. ENVIRONMENT AL ENFORCEMENT ISSUES IN NIGERIA ...... 182

Factors that Encourage Compliance ...... 182

Factors that Discourage Compliance ...... 183

Enforcement by the Courts ...... 185

APPENDICES ...... 204

BIBLIOGRAPHY ...... 244 LIST OF TABLES

1. Table Showing the Names of Clans and Key Towns in the Appendix 1 Study Area. 2. Calendar of events in the core Niger Delta ( Ijaw Appendix 2 Country). 3. List of Traditional Officials Interviewed Appendix 3 4. Profile of Interviewees Appendix 4 5. Sample S.J.D. Questionnaire Appendix 5 6. Table Showing Selected Oil and Gas spillages Between Appendix 6 1989 - 2004 and the extent of inaccurate documentation in Nigeria 7. Table of Recommended Oil Pollution Compensation List Appendix 7

x INTRODUCTION

A. Overview of Thesis

There is currently a dearth of scholarly work on the plight of the indigenous minority people of the Niger Delta of Nigeria. Accordingly, the precise environmental effects of the activities of multinational oil and gas corporations1 in business collaboration with the federal government of Nigeria are largely undocumented.

In recent years, there have been robust calls for change2 in the government's official policy of absolute state control of oil and gas resources.3 Several reasons are espoused in support of the government's position.

1 The international businesses involved in the extraction of fossil fuel in the study area are multinational corporations based in the developed North (America, Europe, and recently Asia). They invest and deploy foreign capital, technology, and managerial skills through a network of subsidiaries. Necessarily, their organizational structure extends beyond the boundaries of their home country. See generally RICHARD FALK, PREDATORY GLOBALIZATION: A CRITIQUE (Polity 1999); E.M. GRAHAM, GLOBAL CORPORA TIO NS AND NATIONAL GOVERNMENTS (1996); THE EMERGENCE OF PRIVATE AUTHORITY IN GLOBAL GOVERNANCE (Rodney Bruce Hall & Thomas J. Biersteker eds., 2002).

2 There has been a change in the attitude of elites from the Niger Delta region towards multinational oil and gas corporations, as a response to the perceived involvement of these corporations in the deteriorating human rights situation and under-development of the region. These, coupled with the feeling of political marginalization, the desire for positive economic change, and rising expectations of the indigenous people, have led to the mobilization of many groups in the region. This includes armed local militia, youths, students, labor, and peasant men and women. Nevertheless, proponents of multinational corporations argue that corporate investment is a mechanism for increasing economic efficiency and stimulating growth. They argue that by transferring capital, technology, and know-how, and by mobilizing idle domestic resources, multinational corporations increase world efficiency, foster growth, and thereby improve welfare.

3 The State has absolute ownership of all oil and gas resources in Nigeria, under the territorial waters of Nigeria, or forming part of the continental shelf. See The Land Use Act (2004) Cap. LS §§ 1-5 (Nigeria); The Petroleum Act (2004) Cap. P23 § 7 (Nigeria); The Offshore Oil Revenue Act (2004) Cap. T7 §§ 1-5 (Nigeria).

11 12 First, those supporters argue that "when ownership of land harboring oil

and gas was privately owned in the Niger Delta of Nigeria, in strict accordance with

customary law, the result was that land had to be acquired before oil and gas exploration

could be undertaken. The process was not only cumbersome, the cost was exorbitant."4

Second, supporters advance that "the absolute state ownership or the socialist approach,

could lead to the production of specialized Nigerian work force in the oil and gas industry

within the shortest possible time."5 Some others in support of the government's "socialist

approach" argue that "it was for the purpose not only of authorizing the multinational oil

and gas corporations to conduct exploration and production work, but also of controlling

their activities. Hence, the government asserted its sovereign rights over Nigeria's

petroleum resources. "6

On the other hand, those opposed to the government's absolute ownership

of oil and gas resources are quick to point out that:

After forty-eight excruciating years of absolute state ownership of oil and gas resources, none of the above prognoses advanced by the government and its cohorts has come true, instead there are increased lapses in the efficient management of revenues from oil and gas-including controlling the activities of the multinational corporations. The result is ethnic conflict, failed governance, and poor environmental and social policies, which have left indigenous people of the Niger Delta-on whose

4 J.O. Fabumni, The Legal Framework ofNational Control of Mineral Oil Reserves in Nigeria 24 (May 29-June 2, 1984) (presented at Nigerian National Workshop on Petroleum, held at the University of Lagos, Nigeria).

5 Olise M.O., Address to the Nigerian National Workshop on Petroleum Law, The Role ofNigerian National Petroleum Corporation ("NNPC") in the Nigerian Oil Industry, (May 29-June 2, 1984) (presented at Nigerian National Workshop on Petroleum, held at the University of Lagos, Nigeria).

6 Id 13 land oil and gas resources are extracted-impoverished with attendant environmental degradation. 7 This dissertation exposes the inadequacy of the existing legal and institutional framework of absolute state ownership of oil and gas resources according to the socialist approach, 8 and demonstrates that this approach has failed Nigeria. The direct and indirect effects of these composite national failures account for the excruciating fact that a majority of the population live below one United States dollar a day,9 and the environment has been devastated almost beyond mitigation, promoting a crippling international indebtedness, ' 0 an unfavorable balance of payment, brain drain, and increased national insecurity.

These and other critical concerns explain the need to urgently re-think the fundamental structure and organization of oil and gas ownership and control in Nigeria.

At the moment, the official government policy excludes traditional environmental management practices that exist in the Niger Delta people's customary system. It also excludes contemporary sustainable development trends in natural resources conservation principles.

7 Orubebe Bibobra Bello, Symposium On Oil and Gas in the Niger Delta: Preparing Towards Post Oil and Gas Era; A new Vision Towards Creating Mutual Relationship Between the Oil Companies and the Communities, (Aug. 27-29, 2001).

8 Orubebe Bibobra Bello, Comparative Analysis ofEIA in Nigeria and the United States ofAmerica Oil Gas Sector 4 (Apr. 21, 2001) (unpublished LLM research paper, American University, Washington College of Law).

9 UNITED NATIONS DEVELOPMENT PROGRAMME ("UNDP"), HUMAN DEVELOPMENT REPORT ON NIGERIA (2006), available at http://www.ng.undp.org/ (last visited Feb. 22, 2009).

IO CENTRAL BANK OF NIGERIA, ASSESSMENT OF NIGERIA'S FOREIGN DEBT 41 (2005). 14 Thus, strategies for challenging the current status quo must be developed to overcome these problems and there should be multiple remedial strategies aimed at expanding and improving existing municipal, state, national and international environmental law and policy regimes. This dissertation's ultimate objective is to identify and analyze the problem and develop solutions for the full realization of environmentally sustainable oil and gas production in the region. These solutions will be based on a coordinated, functional, and participatory Environmental Impact Assessment

("EIA") process, which could protect the region's environment, including the indigenous minority population and their unique way of life.

The thesis will, in addition to the above, articulate and develop legal means through which international environmental law will be self-executing and traditional, indigenous environmental management practices will become part of applicable and enforceable national environmental law. There will be subsidiary theories developed to address critical areas such as environmental justice, the role of Non-

Governmental Organizations ("NGOs"), awareness creation, voice, authority and stakeholders' participation in relation to sustainable oil and gas operations. All of these subsidiary theories will be predicated on, and fully integrated into, the EIA process. In addition to the above, other mechanisms and remedies, such as insurance of special risk covering the environmental effects of oil and gas exploration in the Niger Delta region, will be explored.

The dissertation is divided into three parts, consisting of seven chapters. It includes a dedication, an abstract, an acknowledgement, and several illustrative maps 15 with detailed footnotes. Part one consists of an overview with main arguments and chapter summaries. It also comprises chapter one-Introduction to Nigeria and the Niger

Delta; chapter two-Modem History of Oil Exploration, State Ownership and

Multinational Corporations in the Niger Delta; and chapter three-Environmental and

Other Impacts from Oil and Gas Development. Part two consists of chapter four­

Introduction to Environmental Law in Nigeria; chapter five-Focus on EIA: Comparing

Nigeria to the United States; chapter six-Environmental Enforcement Issues in Nigeria.

Part three comprise chapter seven-Critical Pragmatic Approach to

Environmental Law Reform. This part essentially summarizes the research and uses primary research findings to develop strategies towards a coordinated framework for improved environmental governance in the Niger Delta. It also explores the promise and the challenges of possible reform strategies in an African Federal Constitution. In addition to the above, the dissertation will also address pertinent topics such as the roles of legal education curriculum reform, increased access to justice, and adoption of customary environmental law through constitutional amendment. The high point of the research is the proposition of a coordinated environmental decision-making guideline aimed at strengthening the current EIA process. This is accompanied by a detailed environmental pollution compensation guide for Nigeria, along with a recommendation and conclusion. 16 B. Research Methodology

The legal and policy analysis of this dissertation is based on extensive investigation of the historical, cultural, political, and economic antecedents of the environmental dilemma that reigns in the present-day Niger Delta area. My research and analysis required inquiry into customary practices of land ownership and resource management, the government's policy of absolute state ownership of oil mineral resources, relevant municipal, national and international laws, archival sources, and primary data gathered through personal observation and interviews. The sources of my archival data were: 1) historical records at the British Colonial Office Archives in

London; 2) the Nigerian National Archives at Ibadan; 3) decided cases of Her Majesty's colonial officers-District Officers (DOs); 4) cases of the customary or native authority courts; 5) cases of the high courts of justice; and 6) cases of the federal court of appeal and the supreme court of Nigeria.

Interviews and Data Collection

I conducted interviews with Nigerian government officials engaged in the oil and gas industry, key personnel with multinational oil and gas corporations operating in the Niger Delta of Nigeria, and indigenous ethnic minority leaders and peasants

(fishermen, farmers, raffia palm wine tapers, natural fruit collectors and the like). This part of the research was conducted among the members of the Oporomor, Tuomo,

Seimbiri, Kaba, Oyiakiri, Tarakiri, Idwini, Ogbein, and Mein clans. This research afforded me a critical sense of their perceptions of the effects of oil and gas exploration 17 and exploitation on their lives. I was able to observe post-impact joint inspections of

eighteen oil spillages and twelve oil spill compensation processes. I was indeed able to

observe that most oil spillage victims complained of inadequacy of the compensation for

such damage to their property and to the environmental resources. Yet, they could not

reject this compensation because they could not afford the prohibitive cost and other

difficulties associated with environmental litigation in Nigeria, particularly the

substantive and procedural rule or requirement that .01 % of the total claim be paid as

official filling fee in advance of trial. 11

In all the clans and kingdoms throughout the study area, I combined

semi-structured interviews and follow-up data collection and analysis. Critical issues

such as persistent environmental problems were raised with local or divisional personnel

of the government departments or agencies and multinational oil and gas corporation

officials. These persons most often either ignored me or simply said "they were under

instructions from their head offices not to grant me an audience." Notwithstanding this

hostile and often embarrassing treatment, I proceeded, dividing my field research into

nine clan locations. In each clan under observation, five oil and gas facility host towns, villages, or hamlets were surveyed, with the traditional clan administrative headquarters

serving as the main location.

In determining the sample selection of clans and villages for the subsidiary locations, I relied on the local traditional orators and historians to detail to me and my

11 Federal High Court of Rules (2001) 053 Rl Sched. 2 (Nigeria). 18 research assistants "pulou dese de ama bomo-egedebomo" (previous oil spill impacted

villages and facilities). Out of these, I selected samples of two-thirds of the families,

villages, and clans, using their locally acquired knowledge of the population distribution

and traditional settlement patterns all year round as the criteria. The total number of

survey interviewees was 796. Appendix 4 gives a brief profile of the interviewees by

clan. I have altered the names of some interviewees in my discussion of their views and

their exceptionally heart-felt experiences, in keeping with the promise of confidentiality

that I made to them. 12

Reasons for Choice of Research Area

I chose the Niger Delta for both intellectual and practical reasons. It is my

home and this eliminated or at least shortened considerably the time needed for cultural

adjustment. I am also fluent in the Ezon (Ijaw) language, and therefore I did not need an

interpreter. Intellectually, the Niger Delta question presents a variation on the global

"resource curse"13 thesis rarely understood by scholars outside the region, due to the

12 In the first week of our visits to most of these locations a common question that my research assistants and I were asked was "Are they coming to raid us again?" To gain the confidence of all groups of indigenous people, I made a promise of confidentiality to the local leaders. Indeed, their fears appeared to have some foundation, as we noted the presence of all types of special military task forces of the Nigerian Government in all the clans visited. The few military personnel who accepted interviews in secrecy insisted that they were in the Niger Delta region for special military operations aimed at the suppression of environmental protest and protection of multinational oil and gas corporation facilities and their workers from kidnapping.

13 See RICHARD M. AUTY, SUSTAINING DEVELOPMENT IN MINERAL ECONOMIES: THE RESOURCE CURSE THESIS (Routledge 1993) (discussing the paradox wherein some countries with a wealth of natural resources have lower rates of economic growth than countries less well endowed with such resources). 19 peculiar ethnic dynamics of the area. Further, Nigeria is Africa's largest producer of oil and gas, a fact that makes its steady supply from the Niger Delta critical to global energy market stability.

The nexus between Nigeria's rich oil and gas resources and the social, political and environmental problems in the Niger Delta make for a dilemma of global significance. And central to any solution of the problems posed is the answer to some fundamental questions regarding environmental protection in that area: How do we best protect the overall human environment and at the same time meet the ever- increasing demand for oil and gas? What role could a rigorous EIA process, fully supported by both law and political will, play in the sustainable development of resource-rich developing countries like Nigeria? Can these countries pioneer or fund global renewable and alternative energy efforts? I have no doubt that the international environmental and legal implications of oil and gas exploration in the Niger Delta of Nigeria is likely to dominate global climate change and sustainable development efforts for a long time.

Challenges Encountered

The challenges to the implementation of the research and analysis leading to this dissertation flow from the very problems that are its subject. The area is backward due to neglect by successive regimes of Nigerian governments. As a result, for example, there is no good network of roads linking the clans in the study area and thus transport for the purposes of interviews and field investigations was particularly difficult. Electricity supply is greatly hampered because the Niger Delta area has not been effectively linked 20 to the national generation and supply network. Communication within and with the rest of Nigeria is for now impossible.

In fact, the poor state of basic infrastructure made for a tedious research exercise. It meant that to travel to the rural settlements, I had to go around by canoes, because those areas are not accessible by road. Further, human and social problems, such as armed ethnic and communal conflict, environmentally-induced endemic diseases, poverty, and grave human rights violations, reign supreme. Additionally, strangers who come around in the Niger Delta asking questions are regarded with a degree of suspicion, because they are presumed to be governmental or multinational oil and gas corporation agents who are gathering information for the next attack. Another challenge occurred in my efforts to gain access to data from government offices in the hinterlands. Officials were frequently not willing to release information concerning the research topic.

In the face of all these challenges, the fact that I had been a champion of human and environmental rights protection in the Niger Delta as a lawyer, and the fact that the detailed information being gathered was for a study of their area's problems, worked in my favor. Indeed, the nature of the challenges encountered in performing this research both confirmed the reality and the gravity of the problems addressed in this dissertation and explained the reason for the dearth of balanced legal and scholarly works on the core Niger Delta region of Nigeria. Thus, the research process itself has underscored the importance of substantial professional inquiry and analysis of the type attempted in this dissertation. CHAPTER ONE

INTRODUCTION TO NIGERIA AND THE NIGER DELTA

A. Brief Political History of Nigeria

A true political history of Nigeria must entail not only a treatment of the obvious topics of pre-colonial society, colonialism, independence, and development, but also the critical underlying subjects such as Nigeria's geographic and demographic characteristics. The following discussion introduces all of these relevant features and interweaves them so as to present a coherent picture of the Niger Delta situation.

Relevant Geographical and Demographic Features

Nigeria comprises an area of approximately 923,853 square kilometers. 14

It is bounded to the north by the African nations Niger and Chad, to the west by the

Benin Republic, to the east by Cameroon, and to the south by Sao Tome and Principe and

Equatorial Guinea. In 2005, Nigeria had an estimated population of 138 million people. 15 There are about three hundred ethnic groups 16 (tribes) of which the Hausa-

14 REUBEN K. UDO, GEOGRAPHICAL REGIONS OF NIGERIA 1-2 (Heineman Educational Books Ltd. 1970). Note that in the 1970s, the official measurement used in Nigeria was 356,700 square miles. This figure was converted to kilometers by the researcher for easy reference and comprehension.

15 NIGERIA NATIONAL POPULATION COMMISSION, 1991 CENSUS REPORT 349 ( 1998).

16 Id. at 23.

21 22

Fulani, Yoruba, and Ibo are majority groups. The Ijaw (Izon), Ogoni, Isoko, Itsekiri, and

Urhobo are a few of the minority ethnic groups. 17

Geographically, Nigeria is situated between 4° and 14° north of the equator and longitude 3° and 15° east of the International Greenwich Meridian. It enjoys a diversity of climates and marked environmental features, including sensitive wetlands.

Nigeria's weather is seasonal, in that it has rainy and dry seasons. The country consists of several extensive physiographical plateau surfaces including the Jos Plateau, the Udi

Plateau, the Manbila Plateau, and the North Central High Plains.

The core Niger Delta (the area covered in this study) is mainly coastal and is covered with young sedimentary rocks, which are also common in the Niger-Benue

Trough and the Lake Chad Basin. There exist several other plains with broad and sometimes undulating valleys and numerous hills.1 8 The land mass is peculiar because of the volcanic character of its many hills. The Southern tip of the country consists of approximately 800 kilometers of coastline. 19

Historical Governance Systems

In pre-colonial times, the various ethnic groups existed as independent native states, separated from one another by great distances. 20 These groups often

17 UDO, supra note 14, at 13.

18 Uoo, supra note 14, at 1.

19 STEVE AZAIKI, INIQUITIES IN NIGERIAN POLITICS 28 (2003). 20 Id at 59. 23

maintained deep-seated prejudices, largely due to a lack of knowledge of each others'

cultural, social, and religious values. In this era, the ethnic groups were organized

entirely by sovereign chiefdoms and kingdoms, with distinct traditional methods of

political, economic, and environmental governance. For example, before the advent of

shipping along the Atlantic coast, the main trading system was by barter. Trade was

based on natural resources and other basic products such as palm oil, spices, carvings,

and fish. During this era, the traditional rulers21 had exclusive jurisdiction of trading, and

they exercised unfettered control over resources and people.22

Today, the country is divided into 36 States,23 774 Local Government

Council Areas, and a Federal Capital Territory with three branches of government.24

Though the present governance structure may appear to be modem, close analysis reveals

its diverse historical influences, including the impacts of colonialism, post-colonialism,

and independence.

21 These rulers were called by titles such as "King," "Pere," "Amananaowei," "Amayanabo," or "Amaokosuowei." They were also referred to as His Royal Majesty ("HRM"). Specific examples are HRM Pepple of Bonny; HRM Pere Esuku ofTuomo; HRM Pere Kalanama of Akugbene Mein; HRM Pere Zado ofZadobiri Oboro; (excluding Seinbiri Clan) HRM King Jaja ofOpobo; HRM Pere Ekere ofOporomor ofBayelsa State; HRM Amaokosuowei ofOgbe-Ijoh Warri, HRM Pere Egran Oporomor of Delta State.

22 Interview with HRH Augustine Ebikeme, Pere Ekere of Oporomor Kingdom (May 7, 2004). The interview was conducted in Ijaw (Izon) vernacular and translated into English by the author.

23 CONSTITUTION, Art. 3 (l 999) (Nigeria).

24 Id 24

For many years before the advent of colonialism, the various ethnic nationalities had their own distinct traditional institutions25 of governance predicated on consensus. Colonization, of course, brought the pervasive dominance of the British

Empire to bear upon these early governance systems.

To most persons whom I interviewed, colonialism seemed the result of a

"grand deceit," because early Europeans pretended to be explorers deeply interested in promoting friendship with the Niger Delta people. This professed interest was accompanied by a strong interest in the natural resources and basic commodities (fish, palm oil, spices, yams, pepper, and potatoes). It was the first interest (friendship) that later gave rise to the infamous and devastating transatlantic slave trade.

These events, according to Okokolo Edon Carter, did not prevent the natives from believing the Europeans during their next wave of arrivals. The second coming of the Europeans was tied to promoting free trade and the provision of security from the menacing slave gunboat invasions. Thus, the once dreaded European explorers portrayed themselves as slave trade abolitionists and promoters of free and legitimate trade. This became the object of several organized expeditions to the study area.26 The explorers visited the Ijaw traditional rulers, who unsuspectingly treated their visitors as

25 The traditional political structure of governance in the core Niger Delta, particularly in the case of the Ijaw, made the Pere (King) highest-ranking authority, followed by Alaowei (Chief), Amadaowei (Community or Town Head) and the Waredaowei (Family Head). With other ethnic nationalities (for example, Hausa-Fulani, Yoruba, and Ibo) the governance structure was highly patriarchical and less decentralized. That is, the Sultan, the Oba, or the Igwe and their loyal chieftains.

26 Interview with Okokolo Edon Canter, a renowned traditional historian at Akugbene (Apr. 15, 2004). Canter maintained that the Portuguese were friendly, but the Spanish and British were officious. He in fact showed me the remains of shipwrecks in and around the study area to buttress his account of the expedition activity. 25

"white colored skin men generally believed to be ill or sick and thus harmless."

According to Pa Harris Ozeke27 (a renowned traditional orator and historian), the natives, in their show of hospitality, offered the Europeans food, care, and assistance. But over time there were more visits by these white explorers, who had a strange habit of studying the people and the area and writing with ink and feathers. On a few occasions the natives were invited to try their hands with the strangers' habit.28

Among traditional rulers and others surveyed, it is believed that most of these scribblings were transformed into documents used in the early colonial treaties, which themselves formed the basis of imperialist rule. Thus, the Niger Delta people became colonial subjects to imperial Great Britain involuntarily.29 The British adopted a colonial administration model called "indirect rule," which was rule through the Niger

Delta's traditional heads (who were renamed warrant chiefs). Great Britain's colonial rule was not overwhelming at first, because the core Niger Delta people had minimal contact with the British. In most cases, it was the traditional ruler who collected the age-

27 Interview with Pa Harris Ozeke, Ijaw political historian at Ogbe-Ijoh Warri and the oldest man of the Oyateigha-Otuokpodu Ekere dynasty (Apr. 21, 2004). Pa Ozeke argued that these expressions of good will occurred without consultation with the Ijaw or core Niger Delta traditional rulers or people. Notably, the name of the new territory was suggested by the wife of the colonial Govemor­ General Lord Lugard. The Niger Delta people were thus led into a state of subjugation, under a name and under a set of authorities that did not respect their humanity, their history, or their culture. 28 Ozeke, supra note 27. Writing in English proved strange and difficult, particularly given that the traditional rulers did not understand the meaning or purpose of writing. Further, the act appeared to encourage feelings of inferiority in relation to the Europeans. Pa Harris Ozeke further explained that this gave rise to the discarding of traditional African values in preference for the European values, ignorantly believed to be superior.

29 Interview with Pa Harris Ozeke, at Warri-Ogbe-ljor (May 8-17, 2004). 26 long customary goodwill gifts from the people and passed them on to the Colonial

District Officers ("DOs").

Environmental Management in the Governance Process

Environmental management (including the lack of it during certain periods) has played a part in the overall governance process in Nigeria. Traditional rulers ensured that fish species and other natural resources were utilized in ways that did not deplete the abundant resources. Additionally, among the Niger Delta people, particularly the Ijaws, native law and custom required all capable adults to be generous to strangers who are harmless. This abundance of resources and generosity of attitude largely accounts for why British colonial administration in the Southern Protectorate had no difficulty in meeting the cost of colonial administration or government. In the Northern

Protectorate, however, the situation was different because the colonial officers had great difficulty in raising the money to pay for the basic cost of colonial administration. To address this problem, the British Colonial Governor Lord Frederick Lugard proposed to

Her Majesty the Queen of England the concept of political amalgamation of the Northern and Southern Protectorates with the colony of Lagos. The new amalgamated territory was created in 1914 and called Nigeria. 30

It is critical to note that the decision to amalgamate was made without consultation with the traditional rulers or the Niger Delta people. Similarly, during the

30 A. E. AFIGBO AND TOYIN FALOLA, NIGERIAN HISTORY, POLITICS AND AFFAIRS: THE COLLECTED ESSAYS OF ADIELE AFIGBO ch. 7 (Africa World Press 2004). 27 negotiations for Nigeria's independence, only one native person, Alaowei Harold Dappa-

Briye, attended the pre-independence constitutional conferences in Ibadan (1956) and

Lancaster, London (1958), and he did so of his own accord. This unexpected tum of events left the leadership of the clans and kingdoms feeling frustrated and betrayed by the

Queen of England. A few clans met in the ancient Ijaw city of Port Harcourt and petitioned, through Alaowei Harold Dappa-Briye, as follows:

First, there were environmental factors. There was no other area in the whole of West Africa with a physical or environmental configuration like that of the Niger Delta or Rivers Area. It was unfair that such an area should not have its own separate government to harness the energies of the rivers to develop its unique resources in the interest of the people who lived there. This had been recognized long ago as 1890 in a memorandum from the Liverpool Chamber of Commerce to lord Rose berry [sic], then Foreign Secretary. The way of life of the people had also been influenced by those environmental or physical features. They could not be administered from Ibadan, Enugu or Lagos. They needed their own Country . . . Second, there was the matter of the treaties. Experience in India showed that when independence was granted, treaties lapsed. Arrangements for transferring paramountcy should therefore be made now before independence was granted. (C.5365 of April, 1888) .... That the British Consul Hewett wrote to the Niger Delta or us-the Rivers people and King Jaja "that the Queen does not want to take your Country or Markets but as the same time is anxious that no other natives should take them. She undertakes to extend her gracious favour and protection which will leave your country still under your government? Those Treaties signed in 1884, showed that the Niger Delta or Rivers People had an undeniable right to a separate state. It would violate the Treaties to hand over the People to another authority.31

31 ON EXCERPTS FROM LONDON CONFERENCE PROCEEDINGS, COLONIAL OFFICE AND NEW COMMONWEAL TH LETTERS 1 (1957) (located in the 1957 Special Correspondence File in the National 28

Nigeria was granted political independence on October 1, 196032 by Great

Britain. The British Monarch remained the political and constitutional sovereign of

Nigeria and, by implication, the head of the government until the introduction of the

Republican Constitution in 1963,33 when Her Britannic Majesty Queen Elizabeth II ceased

to be the political sovereign. The Monarch now functions as the head of the

Commonwealth. 34

At independence the Queen of England handed over political leadership of

the country to the leaders of the three majority ethnic groups, the Hausa-Fulani, the

Yoruba and the Ibo. These leaders, acting under military and civilian regimes, adopted

trust-style institutional and legal arrangements that essentially disinherited the Niger

Delta indigenous minorities of their environmental, human, socio-economic, political,

and cultural rights.35 This special advantage, coupled with majority ethnic dominance

reflected in the laws and policies of government and endemic corruption, have

institutionalized non-compliance and selective enforcement of laws and policies, which

in tum exacerbate environmental degradation in the Niger Delta region.

Archives Ibadan). Also reproduced in part in TEKENA N. TAMUNO, THE NIGER DELTA QUESTION 17 (Riverside Communications 2000) (emphasis added).

32 Nigerian Independence Ordinance § 2 (1959) repealed by CONSTITUTION (1963) (Nigeria).

33 Id. at§ 13.

34 A political association to which all-former British colonies except America belongs. The commonwealth has in recent years been faced with difficult issues such as grave human right violations and un-democratic governance in Nigeria, Pakistan, and currently Zimbabwe, among others. 29

These and other related facts account for the protracted threat of disintegration that confronts Nigeria. 36 The economic, social, and environmental effects are the widening gap between the rich and the poor, general insecurity, high operational costs for the multinational oil and gas corporations due to increasing sabotage of strategic oil and gas facilities, and oil spills. Accordingly, grave repercussions affecting the people and the physical environment of the region, particularly the symbiotic ecological balance, have plagued the religion.

This disturbing state of affairs led to calls for a Sovereign National

Conference ("SNC") by most dissatisfied ethnic nationalities in Nigeria, the objective being to address issues threatening the break-up of Nigeria. President Obasanjo's reaction was the establishment of a National Political Reform Conference ("NPRC").37

Some suspected, however, that this was a deliberate attempt by the leadership of the three majority ethnic groups38 to thwart any real resolution of the problem.39 The National

35 This was manifested in all Nigerian administrations from independence to date. It is important to note that none of the core Niger Delta minority people (ljaw or Ogoni ethnic groups) have had the opportunity to rule Nigeria from Independence to date.

36 Uba Aham, Movement for the Actualization ofSovereign State ofBiafra (MASSOB) paralyzed Nigeria amidst bloody encounters between its cadre and Nigerian Security agents over two-day sit at home strike, NEWS MAG., Dec. 12, 2005.

37 JOHN NPADEN, FAITH AND POLITICS IN NIGERIA 51 (2008).

38 J. A. MAJASAN & J.A. QUININ-YOUNG, A VISUAL GEOGRAPHY OF NIGERIA 31-32 (3rd ed., Evans Brothers Nigerian Publishers 1984). These authors identified over 250 ethnic groups (tribes) in Nigeria. They further classified Hausa-Fulani, Yoruba, and Ibo as majority groups and the Ijaw (lzon), Ogoni, lsoko, Itsekiri, and Urohobo as minority ethnic groups, amongst others.

39 K.M. Mowoe & A. 0. Salami, Address at The Nigerian Law Teachers Conference, Democracy and Sovereign National Conference, at University ofMaiduguri, Bomo State, Nigeria (Oct. 13- 15, 2003). The speakers argued that as a result of the difficulty in establishing truly democratic institutions over the years, Nigeria has not had an effective visionary executive with a national outlook acceptable to 30

Political Reform Conference (wherein all delegates were appointed by the Government) was stalemated due to a mass walkout by the Niger Delta delegates.

Essentially the Niger Delta delegates' key demand was for decentralized federalism, with devolution of actual power from the federal to state governments and state police, along with self-determination and resource control authority so as to enable resident minority ethnic groups to develop at their own pace. To give effect to the above, the Niger Delta delegates presented a harmonized constitutional resource control formula based on the principle of derivation. In other words every state from which revenue is derived would retain 25% of the revenue accruing from their oil and gas resources. The new revenue formula was to become effective January 1, 2005 and subject to a 5% incremental raise each year until 2010, when the derivation percentage would become fixed at 55%.

The Niger Delta people's demand was made in part to enable them to address the fundamental issue of environmental degradation afflicting the region due to

the various segments of the state as a figure or symbol ofunity within its multi-cultural ethnic loyalties. As a result, elections have given rise to resentment and agitations within the polity with so many issues begging for solutions or consensual resolutions. There are allegations of marginalization of minorities; political or economic domination by particular segments of the country; complaints against perceived injustices; sectional or ethnic loyalty overriding national loyalty in important decisions involving national interest; religious misunderstanding or suspicion; allegations of corruption by the leadership which remain unaccountable to the governed; rigging or unfair manipulation of the electoral process; and finally, a general mode of disillusionment by the citizenry. In a bid to reduce or resolve these or similar problems in some other African countries, the idea of Sovereign National Conference ("SNC") has been employed, though the strategy is sometimes unsuccessful because of lack of cooperation by the incumbent governments. As a result of colonial experience, the constitutions bequeathed to the peoples of Africa at their various independences cannot be said to be autochthonous, indigenous, or reflective of the aspirations of their people. The matter was made worse by the spate of military interventions and totalitarian tendencies in the governance of many Sub-Saharan countries shortly after independence. 31 oil and gas exploitation. The majority ethnic groups,40 through their delegates, insisted on 17% revenue allocation on the basis of derivation and eventually defeated the call for constitutional amendment.

Although the Nigerian attempt at political restructuring through this model failed, its utility should not be doubted. The SNC model of political restructuring is not new to post-independent Africa. It has been used to address series of problems in several post-independent African countries including the Republic of Benin, Congo

(Brazzaville), Mali, Togo, and Democratic Republic of Congo (formerly Zaire).41 This is

40 See generally UDO, supra note 14.

41 The Democratic Republic of Congo (formerly Zaire) also had a national conference, but former President Mobutu Sesi Seko managed to control and neutralize the process. He frustrated all attempts by the national conference to accomplish any genuine and substantial regime change through multi-party elections. It was not until 1990, that Mobutu agreed to allow a multi-party system. Zaire was in theory a single-party state with the Popular Movement of the Revolution (MPR) as the only legal party to which every citizen automatically belonged. In practice, the MPR was simply a vehicle for the one-man rule of Mobutu, resting on his control of the army and especially the Presidential Guard. Following mass pro-democracy demonstrations, anti-government strikes in 1990, and pressure from external patrons, Mobutu agreed to allow the existence of opposition parties; 130 were formed, which meant that the opposition was highly fragmented. In April 1991, he announced that a national conference would be convened. Mobutu, following wide-spread anti-government protest, suspended the conference before it even convened. A fragile coalition known as the Sacred Union was ultimately formed and the Zairian national conference eventually opened in August 1991. Although it remained in formal existence until December 1992 (far longer than the other West African national conferences), it was frequently suspended and clashes between government and opposition forces occurred regularly. The conference produced a draft constitution, but Mobutu remained in control, and the country became chronically unstable. It needs be emphasized that although Zaire's National Sovereign Conference was held between 1991-1992, and the follow-up High Council of the Republic established in 1993-1994, it did not succeed as an instrument of democratic transition from Mobutu's authoritarian government. It did, however, contribute to the opening of political space. These forums allowed opposition forces to wield some influence, to the point where at times there were competing claims of governmental authority from the High Council and the decaying Mobutu regime. Prominent opposition figures such as Etienne Tshisekedi emerged to challenge the regime and even to briefly share power as the democratization experiment was launched. Furthermore, the process led to extensive planning for elections slated for 1997, which ultimately did not take place due to civil war in which the rebel forces of then President Laurent Kabila defeated Mobutu's military. Nevertheless, many Congolese politicians, especially opposition figures, continue to refer to the work of the national conference, and particularly its constitutional vision of a federal democracy with a high degree of devolution of powers. 32

Similarly, in 1989 Benin was in a state of crisis because of economic and social unrest. A commission was created to prepare a "national reconciliation conference" that would include broad elements of the political society to discuss the country's future. Participants would include the government, political parties (both from the nascent opposition and the majority), trade unions, religious associations, army representatives, and women's groups. Initially, the conference was to have no more than an advisory role and was regarded by some in the opposition as a diversionary tactic. In a strict legal sense, the conference had no constitutional standing at the outset. Furthermore, none of the participants to the conference could claim a popular electoral mandate because the membership of the conference was appointed instead of being elected. However, the appointment of the Archbishop of Cotonou, a respectable clergyman, as chairman of the conference gave it a moral legitimacy. By February 1990 when the national conference was convened, President Kerekou had lost control of political events. He miscalculated that the national conference would provide an opportunity for him to retain power and enlarge his power base by opening up the political system and by making certain concessions. However, the 488 delegates soon declared themselves sovereign. Kerekou's immediate response was to describe this decision as a "civilian coup d'etat." Given his weak position, he was made to swallow this bitter pill and to helplessly tolerate the popular support enjoyed by the democratic opposition, in the face of the uncertain support of the army. The conference agreed to allow Kerekou to retain the presidency, pending democratic presidential elections and provided that he accepted the sovereign decision of the conference. It was also decided that Kerekou would not be prosecuted for any "crimes" he had committed while in office. Subsequently, the conference suspended the constitution, dissolved the National Assembly, created the post of prime minister, and appointed Nicephore Soglo, a former World Bank official, as prime minister. A new constitution was drafted, which allowed presidential term limits and multi-party elections. The constitution was approved by referendum in December 1990 by ninety-six percent of the population. Competitive parliamentary elections were held in February 1991 and presidential elections were held in March 1991; twenty-four political parties and thirteen candidates, including Kerekou and Soglo, contested the parliamentary elections. Soglo's coalition, the Union for the Triumph of Democratic Renewal, won the largest share of parliamentary seats and Soglo became President. In the case of Congo, before democratization, the Congolese political system exhibited many similarities to that of Benin, The state was ruled by a militarized single party with strong Marxist­ Leninist tendencies, the Congolese Labor Party ("PCT") led by Col. Denis Sassou-Nguesso. Deterioration of the economy and mounting social unrest led to the gradual erosion of the PCT's political monopoly, and by 1990, some liberalization of the political system was already underway. In July 1990, the principle ofa transition to multi-party system was accepted, political prisoners were released, and by the end of the year, Marxism-Leninism was abandoned. In January 1991, in the hope of controlling and neutralizing the process of political liberalization, Sassou-Nguesso took the initiative to legalize the formation of political parties. Later that year Nguesso convened an all-party national conference to chart the country's political future. The national conference comprised 30 political parties and 141 associations and was convened for a three-month period starting February 1991. The conference established a new legislature, the High Council of the Republic, which drafted a new constitution that was submitted to a referendum. It also chose a new prime minister, Andre Milongo, a non-party political technocrat and World Bank official. The democratic experiment in Congo, however, collapsed in 1997-1998 when Sasuo-Nguesso returned to power by force. In the case of Mali, the national conference in Mali had a more limited role in the transition process than it did in Benin or Congo. The conference served more as a consensus-building mechanism after the overthrow of Moussa Traore's dictatorship. There was widespread opposition to harsh conditions under Traore's twenty-two-year dictatorship, and mounting demands for a multi-party system erupted in rioting in the streets of the capital Bamako and other towns during the first months of 1991. On March 26, 1991, Traore was ousted by a military coup under the reform-minded leadership of Amaduo 33 a unique model in that it attempts to redress perceived injustice and imbalances in the national governance structure.

The Situation at Present

Most scholars whose work addresses African modemization42 believe that the most critical effects of colonialism were: 1) the creation of artificial borders; 2) the superimposition of preferred, and in most cases, majority, ethnic groups upon minority ethnic groups; 3) the creation of a dependence culture; and 4) the deliberate inclusion of a

Toumani Traore. A Transitional Committee for the Salvation of the People ("CTSP"), composed often military and fifteen anti-Traore civilians and headed by Traore, was formed. For more than a quarter of a century, Etienne Eyadema, who came to power by a military coup in 1967, dominated the Togolese political system. Since 1969, Togo had officially been a single-party state with the Rally of Togolese People ("RPT") as the ruling party. In reality, the RPT was a military­ backed front for the personalized rule ofEyadema and his Northern Kahre ethnic tribe. In June 1991 a new coalition of opposition forces formed the Democratic Opposition Front ("FOD"), which included political parties and trade unions, and launched an indefinite general strike. In the short term, the pressure paid off as Eyadema agreed to a national conference, which opened in July 1991with1,000 delegates and with the bishop of Atapame as chairman. The conference soon proclaimed itself sovereign. Government representatives rejected such a proclamation and walked out of the conference. Although they returned one week later, they refused to accept the conference's self-proclaimed sovereignty: Eyadema argued that sovereignty could only be based on universal suffrage, which the conference lacked. Although government forces were represented and participated in the conference, they made it clear they would not be bound by any decision taken. There is no doubt that the Togelese national conference significantly overestimated its own real power and underestimated that of the incumbent regime. These facts are supportive of the views and conclusions reached by K.M. Mowoe and A.O. Salomi. See Mowoe & Salami supra note 39.

42 DAKAS C.J. DAKAS, INTERNATIONAL LAW ON TRIAL: BAKASSI AND THE EUROCENTRICITY OF INTERNATIONAL LAW 72 (St. Stephen BookHouse, Inc. 2003). The author argues: "19th Century international laws[] bristle with contradictions and tantalizing mirages. To the extent that nineteenth century international law, given its Eurocentricity, failed and reckon with [the legacy of Africa's authentic history], its claim to universality is undoubtedly suspect. One could be tempted to focus on the profound transformation that [international law] has undergone over the years and, basking in the euphoria that it has purged itself of its colonial vestiges, be complacent about its past role exposing the ignominious role of international law in the colonial project is an imperative exercise that brings with it the liberating realization that to speak of colonialism and its crippling effect in the past tense is to wallow in idle fantasy; thus underscoring the imperative of vigilance. In another paragraph of the same book Professor Wole Soyinka pointed out that at the Berlin Conference the colonial powers met to divide up their interests into states, lumping various peoples and tribes together in some places, or slicing them apart in others like some demented tailor who paid no attention to the fabric, color or pattern of the quilt he was patching together." 34

policy of "divide-and-rule." All of these effects were implemented through colonial

institutions of administration, typically through clandestine ethnic manipulation or

division-amplifying institutional mandates in their relations with the different ethnic

nationalities. And this process occurred without regard to the various ethnic groups' pre­

colonial status and peculiar socio-cultural values and institutions.

The effect was that the various ethnic groups developed unequally. In

some cases, ethnic leaders scrambled to control particular departments of government

and extend favors to their ethnic territories. The ensuing developmental disequilibria

ultimately gave rise to artificial boundaries of political or ethnically defined entities all

over Africa. In the case of Nigeria, this chaotic scenario triggered a political

apprehension at the eve of independence, with political leaders of the majority groups

scrambling to annex resource-rich territories (usually indigenous minority home lands

such as those of the core Niger Delta clans). This set the stage for inter-ethnic rivalry,

political domination, and protracted armed conflicts, which were never properly

managed, and ultimately led to the current vicious cycle of despotism, questionable

leadership, poverty, armed conflicts, and the like.

The Nigerian economy is entirely dependent on proceeds from oil and gas resources mainly found in commercial quantities and extracted from the homelands of the Niger Delta minorities. Oil and Gas resources account for 94% of the Gross

Domestic Product ("GDP"), 96% of the Federal Government Budget, and 98% of 35

Nigeria's total Foreign Exchange Earnings.43 This same national economic data reveals that 87% of GDP, 88% of Federal Government Budget, and 97% of Federal Government

Foreign Exchange Earnings respectively are realized from the core Niger Delta through proceeds of oil and gas exploitation. Thus, much of Nigeria's daily subsistence is dependent on uninterrupted oil and gas exploitation from the study area-a fact which makes this region critical to the continuous existence of Nigeria, and by extension, the general peace and stability of Africa.

A critical nexus in this matter is that between the government and multinational oil and gas corporations from the developed countries of the North.44 The constraints on these companies' ethical behavior derive from shareholders and civil society organizations, and not from any governmental oversight. As a result, Nigeria now awards increasingly more oil and gas lease blocs to countries whose economies are in transition, such as India, China, and South Korea, ostensibly because of the weak and low corporate responsibility controls and minimal environmental standards applied to their corporations.45 Some of these companies recently won oil and gas blocs that were

43 CENTRAL BANK OF NIGERIA, STATISTICAL BULLETIN vol. 14 at 194-202, (2002).

44 In this dissertation, references to the developed North mean America, Britain, France, Germany, Italy, Canada, Norway, and similar countries. The principal multinational corporations include Shell Petroleum Development Company Nigeria Limited, Chevron Texaco, Exxon Mobil, Elf Aquitaine, Agip Oil, Stat Oil, Conoco, and Famfa Oil.

45 Charles Okonji, Asian Oil and Gas Corporations win Niger Delta Oil Blocs, DAILY INDEP., Dec. 13, 2005. Okonji, Nigeria's foremost energy correspondent, reported a news briefing by the president of Nigeria and stated that Asian Oil and Gas Corporations, particularly Sonegal Corporation, was awarded the Akpo oil and gas field by the federal government in the 2003-2004 bidding round (OML 90). Also an Indian firm, ONGC, was successfully awarded the Ogedeh oil and gas fields for $2 billion (N264 billion), with an offer to develop $6 billion worth of railroads and 2000 megawatts ("MW") of coal or gas power plants. The deal in terms of daily output is about 180,000 bpd for 25 years. 36 reserved for them by the federal government of Nigeria and are now active oil and gas facility operators in the core Niger Delta.

In spite of the considerable wealth that Nigeria derives from the oil and gas fields in the Niger Delta, there is a contradiction of wealth and poverty that derives largely from the deleterious effects of oil and gas exploration and exploitation. The Niger

Delta minority populations are poor and without adequate or equitable representation in the three organs of government.46 In most cases, the peoples' lack of voice, authority, and influence make them ready prey to grave human rights violations. Most interviewees were quick to point out instances of systematic state-sponsored executions,47 extra judicial killings,48 rape,49 unlawful detentions,50 inter-ethnic/communal armed conflicts,

46 See supra note 35 and accompanying text.

47 KEN SARO-WIWA, A MONTH AND A DAY: A DETENTION DIARY vii (Spectrum Books Ltd. 1999). The execution of Ken Saro Wiwa was widely reported all over the world but the words of William Boyd, in the introduction to the above book, capture the mood and the history that accompanied this event: "Ken Saro Wiwa was a friend of mine. At eleven thirty in the morning on l 0 November 1995, he was hanged in a prison in Port Harcourt, in eastern Nigeria, on the orders of General Sani Abacha, the military leader of Nigeria. Ken Saro-Wiwa was fifty-four years old, and an innocent man."

48 Interview with Alaowei Oyakungha, at Kusimi-gbene, a suburb of Warri-Ogbe-Ijaw (May 27, 2005). He maintained that civilian democratic rule in Nigeria has not changed the systematic pattern of human rights abuses in the core Niger Delta. According to him, only in February 2005, twenty­ seven youths, who described themselves as environmental protesters, were summarily executed by Nigerian Army personnel with the backing of government local militia youth groups near Warri. He was passionate and emphatic that these youths were killed perhaps because of the Executive Governor's "shoot­ at-site" order. For fear of President Obasanjo or the federal government declaring a state of emergency in Delta state, the governor offered 30 million naira for the summary execution of any youth disturbing oil and gas multinational corporations operations. Such disturbances are regarded as threat to national security by the present administration. The bereaved Oyakungha called for independent international human right investigations and trial of the culprits. Alaowei Oyakungha's two sons, Nigeria and Ekereke Oyakungha, were among the victims at Kusimi-gbene Odidi flow station Ogbe-ijoh, Warri and Okerenkoko. The Interview was conducted in Ijaw and translated to English by the author.

49 Military personnel attached to almost all oil and gas facilities in the Niger Delta have been accused or known to have raped innocent Niger Delta women, children, and female students without official reprimands for years. This was confirmed in almost all clans and sub-locations that were visited by interviewees. These and many other human right violations were also reported by credible international 37

and inmate-to-inmate violence. Ken Saro Wiwa, the foremost environmental and human

rights campaigner described the suffering of the Niger Delta Oil producing communities:

Some may argue that the Niger Delta peoples' argument derives from the fact that the people have oil and gas. This is not necessarily so. Indeed, the argument of the people is that oil and gas have only produced misery to the people; oil exploration has deprived them of farmlands and polluted their streams, gas flaring into the air has poisoned the air and has, by glaring day and night, stopped fishes from spawning and driven all wildlife away. Gas flaring also lead to acid rain which renders the soil infertile. Moreover, the presence of oil and gas does not mean automatic wealth. If it were so, Nigeria should be rich, and not a debt-ridden country with educational, health and other services in a parlous state-its people hungry and malnourished. The only beneficiaries of oil wealth are the multi-national oil companies and their shareholders. The environment is man's first right. Without a safe environment, man cannot exist to claim other rights be they social, political or economic. The fact for the Niger Delta people is not being in control of their environment, their very existence is seriously threatened. Oil exploration and exploitation carried out by Shell and Chevron in the Niger Delta with reckless abandon for the environment has been omnicidal. Even worse is the fact that the Niger Delta people do not know exactly what their resources of oil and gas are and since they do not determine how much of the oil is mined, they cannot measure the sustainable development of their communities. 50

non-governmental organizations ("NGOs"). See HUMAN RIGHTS wATCH, REPORT ON NIGERIA 5 (2005); CIVIL LIBERTIES 0RGANIZATION, ANNUAL HUMAN RIGHTS REPORT 17 ( 1998).

50 GANI FAWEHINMI, STATE OF THE NATION AND THE DANGERS AHEAD: THE STRUGGLE FOR GENUINE DEMOCRACY IN NIGERIA VOL. II 163-64 (Books Industries Nigeria Ltd. 1999). 38

The problems described above exist and continue by virtue of a lack of effective governance on the parts of both the government and the corporate community.

Part of the problem is structural, in that the Constitution and laws of Nigeria vest ownership and control of oil and gas resources in the state. 51 The combined legal effect of this structure is that Nigeria has an inherent right to control, regulate, dispose, and even abuse, its oil and gas resources without hindrance from the international community.

This socialist-based governance structure of absolute state control of resources52 has caused the Niger Delta people to be disinherited of their right to their lands, including their rights to oil and gas and other mineral resources. It is important to point out that this confiscation was without compensation to the Niger Delta people.

The Nigerian governance structure as regards the nation's lands and mineral resources stands in contrast to both ancient and modem practices. For centuries, people in many societies have owned their lands and natural resources and used them in accordance with their own customary environmental law through which they maintained sound environmental management practices. Further, even with lands owned or controlled by the government, the people had a voice and influence regarding the proper

51 CONSTITUTION, Art. 161-62 (Nigeria); The Land Use Act (2004) §§ 1-5 (Nigeria); The Minerals Act (2004) § 3 (Nigeria); Petroleum Act (2004) § 7 (Nigeria). 52 Interview with Hon. H.B. Buku, Head of Political Science Department, College of Education, Warri (Feb. 28, 2008). The socialist ideology, according to Hon. H.B. Buku, requires ownership by the state of all properties within a nation. It does not accommodate private property ownership; it purports to create a classless society in line with Marxist-Socialist ideology. As a political institutional model it is highly autocratic. According to Karl Marx and Friedrich Engels, the socialist revolution begins with the working class, which must raise the proletariat to the position of ruling class to win the battle of democracy. The proleteriate will then use its political supremacy to wrest, by degrees, all capital from the bourgeoisie, and to centralize all instruments of production in the hands of the State. See KARL MARX AND FRIEDRICH ENGELS, THE COMMUNIST MANIFESTO 25 (Oxford University Press 1992). 39 use and management of those resources. Enlightened ancient principles resembled-and indeed influenced--current principles of sustainable development contained in Rio

Agenda 21 53 and other international environmental laws (soft or hard). It is this proven group of wise customary "usages" that the Nigerian government's socialist approach has displaced.

B. The Core Niger Delta and The Tribal Clans

Background of Field Research Area

The illustrative maps 1, 2, 3, and 4 clearly show the area covered by this research, the core Niger Delta area known to the international community before

Nigeria's independence. It comprises only the area contiguously inhabited by the Ijaw and the Ogoni ethnic minority groups. By contrast, the area covered by this study is the

Ijaw homeland, an area that was originally about 80,000 square kilometers and that sustained an estimated population of 12.l million. 54 Considering the global attention the

Niger Delta region now attracts because of, among other things, the poor state of its environment, it is critical to attempt a detailed description of environmental features such

53 For the purpose of this dissertation, international environmental law and policy includes all environmental treaties and agreements, entered into by countries or parties that are currently in force, whether or not Nigeria is a party. For an overview of these international environmental laws and policies see generally DA YID HUNTER, JAMES SALZMAN & DUR WOOD ZAELKE, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY (3d ed. Foundation Press 2006).

54 NIGERIA NATIONAL POPULATION COMMISSION, supra note 15. This figure is derived from a summation of all the population figures of the areas originally inhabited by the Ijaws in the six states they inhabit. This figure is also corroborated in FUNGEOWEI LUKE EPPEH, IZON STRUGGLE FOR SUR VIV AL 1940-2000 4 (2001 ). 40

as the physical characteristics, climate, and vegetation, with a view towards presenting

the Niger Delta situation in complete perspective.

Location

The Niger Delta is a fan-shaped piece of land, lying and situated in the

southern part of Nigeria. It extends from the Benin River in the west to the Bonny River

in the east inland. It is a few kilometers below the town of Aboh at a point where the

River Niger bifurcates into the Nun and Forcados Rivers. This description also

corresponds to the geo-political and administrative boundaries of the homelands of the

Ijaws in Ondo, Edo, Delta, Bayelsa, Rivers and Akwa Ibom States of Nigeria (as shown

in figure or map 4 ).

The area is dissected by a maze of inter-connected channels and these open up to the Atlantic Ocean by several mouths. Note that the definitions of the natural boundaries were based on related geological, geographical, and ecological conditions.

Natural environmental processes do not obey political or legal boundaries. It is against this background that the current Nigerian government definition55 of the Niger Delta region, comprising the States of Ahia, Akwa Ibom, Bayelsa, Cross River, Delta, Edo,

Imo, Ondo and Rivers (as shown in figure 3 at page xiv in this dissertation) is revealed as not only artificial but politically questionable. Hence there is good reason for the ljaws, the Ogoni, and other ethnic minorities in the South-South of Nigeria to believe that this

55 Niger Delta Development Commission Act (2004) Cap. N23 §§ 1-4 (Nigeria). 41 definition was yet another attempt to superimpose on them a "minority within a minority" status. 56

Physical Characteristics

Three main physical units stand out in and around the study area. These are the narrow belt of white sandy beaches, the inner belt of salt water swamps underlain by a rare clay called Chikoko Mud, and an interior, rhomboid-shaped coastal zone of fresh water. These three areas account for the rich biodiversity of species that prevailed before the advent of oil and gas activities in the Niger Delta region.

Climate

The Niger Delta region is usually classified as a humid, semi-hot equatorial area. 57 Two air masses influence the climate of the region. The first is the moisture-bearing southern air mass, which originates from the southern Atlantic Ocean.

The second is the dry north-easterly air mass which originates in the Sahara Desert. 58

The Niger Delta experiences a high amount of rainfall. The mean annual rainfall is more than 3550 mm and this varies from about 4500 mm in the Bonny Area to about 2500-

3000mm in the Ogbe-Ijoh-Warri and the Port-Harcourt areas. This otherwise high

56 Interview with Paul Omisore, Youth Leader in Washington, D.C. (June 9, 2005). The phraseology "minority within the minority" is a common slang by Niger Delta commentators, meaning a politically hopeless and voiceless status of existence both in ethnic and governance perspectives in Nigeria.

57 J. A. MA!ASAN & J.A.QUINN-YOUNG, A VISUAL GEOGRAPHY OF NIGERIA, 11-13 (3d ed., Evans Brothers Nigerian Publishers Ltd. 1984).

58 Id. 42

variant total, according to Iloeje N.P., 59 is due to its closeness to the sea, the orientation of

the coast across the wind path, and the presence of warm currents and dense vegetation.

The mean daily air temperature ranges between 24° and 32° celsius. The

lower mean temperatures are recorded in the rainy season while the higher mean

temperature is recorded before the onset of the rain. 60 During the dry season, the relative

humidity in the Niger Delta is usually more than 80% in the morning and greater than

60% in the afternoon.61 The Niger Delta is truly one of the world's largest deltas. It

contains Africa's largest and most diverse wetlands, the world's third largest mangrove

forest, 62 and the most extensive freshwater swamp forest on the West African coast and in

Sub-Saharan Africa. "This region has a unique ecosystem and most of Nigeria's

remaining primary forests, concentration of high biodiversity, and a center of

endemism. "63

Brief History of Traditional Clan Settlement Patterns in the Niger Delta

Understanding the traditional clan as an administrative unit and a political institution of governance is crucial to an understanding of the Niger Delta. This unit is

59 N.P. ILOEJE, NEW GEOGRAPHY OF NIGERIA 33-39 (1977).

60 NIGER DELTA ENVIRONMENTAL SURVEY ("NDES"), PHASE I REPORT VOL. 4 13 (1997).

61 J.A. OGUNTOYIBO, A GEOGRAPHY OF NIGERIA DEVELOPMENT 18 (2nd ed., Nigerian Geographical Ass 'n 1978).

62 NDES, supra note 60 at xvi.

63 Id. 43

not supported by any identifiable formal legislation in Nigerian legal jurisprudence or

institutional framework. In most cases, the clan is viewed as the quintessential customary

institution, comprised of towns and villages. Usually, the traditional administrative

structure of each clan forms an integral part of the clans' governance.

Language, Number of Clans, Key Towns, and Villages in the Core Niger Delta

In the core Niger Delta (specific area of the study), the main language

spoken by the people is Ezon (which was corrupted in translation by the first European

explorers as Ijo, Izon or Ijaw etc). In this dissertation, the term "Ijaw" is used because of

its wide usage in modem literature. Ijaw language has several dialects due to migration

and other influences. The Ijaw dialects recorded in the course of this research are: (1)

Tuomo; (2) Apoi-Arogbo; (3) Olodiama; (4) Oporoza; (5) Tobu; (6) Bolou-Toru; (7)

Mein; (8) Kabo; (9) Kolokuma; (10) Ogbein; (11) Oyiakiri; (12) Gbarain; (13)

Ekpetiama; (14) Epie/Atiasa; (15) Ogbia; (16) Akasa; (17) Nembe; (18) Bissan; (19)

Okordia-Zarama; (20) Andoni; (21) Ibani; (22) Kalahari; (23) Okirika; (24) Abua/Odual;

(25) Egenni; (26) Okun; (27) Ndoki; (28) Egbema; (29) Deibiri; (30) Gbaramatu; (31)

Isaba; and (32) Sekeleo. The traditional clans or kingdoms are nine in number: Mein.

Oporomor, Tuomo, Oyiakiri, Kabo, Tarakiri, Seinbiri, Ogbein, and Idwini.

It is important to note that these ancient clans or kingdoms are at the apex

of the accepted traditional, political, and administrative governance structures among the

!jaws. In today's Nigeria, the Niger Delta people, particularly the Ijaws, are 'balkanized'

into six states of Ondo, Edo, Delta, Bayelsa, Rivers, and Akwa !born. It is difficult to 44 relocate the language or dialect and lexicon in terms of migratory origins of clans. In this dissertation an effort was made to re-trace the history of the various clans and their traditional settlement patterns by identifying the major communities, towns, and villages which are contained in Appendix 1.

As regards the history of the people and the number of clans, most traditional orators and historians interviewed in the ancient clan headquarters including the most acclaimed Okokolo Carter Edon ( 52 years of age), Alaowei Onduku (82 years of age), James Odisi (94 years of age), Alaowei Zaria Torukro (75 years of age), Pa Harris

Ozeke (92 years of age) and Alaowei Ekolo Daunumughan (elderly, age unknown), all confirmed that the nine clans or kingdoms were the names of the biological children of

Ezon (Izon, ljo or ljaw). Ezon is believed to be a descendant of one of the lost tribes of biblical Israel. In all the clans and sub-clans, particularly Oporomor clan, each towns has a replica of the biblical "Ark," known in Ijaw as "Ekpada." The interviewees also agreed that according to local legend, their progenitor, Ezon, left Israel and migrated to Southern

Sudan from where his father, the eldest male of a family of twelve, penetrated the West

African forest and settled in today's Niger Delta as the very first Negro inhabitants.64

The Role of the Clans

In the societies of the Niger Delta, the clan is vested with the authority to state and create customary law (including environmental rules) covering virtually all

64 INTELLIGENCE REPORT ON MEIN CLAN SUB-TRIBE lJO W ARRI PROVINCE 46 ( 1930). Located in the Warri Province Assessment Report file of 130 in the National Archives, Ibadan, Nigeria. 45 aspects of life. These laws are usually detailed, yet unwritten, codes of conduct for clan members. The customary environmental laws created by the clan are passed on from generation to generation through folklore, oral tradition, and sometimes by means of other agents of acculturation (family, town, or clan meetings, traditional worship ceremonies, and the like). The customary laws, once created, are widely recognized and adhered to in both urban and rural areas. The Chief Priest, who is always revered for his supernatural powers and by virtue of his believed role as interlocutor among the living, the dead, and the ancestors, is the chief custodian of custom.

Customary law, particularly customary environmental law, governs the means by which crops and plants are grown in each forest. This includes who can farm, the degree and nature of skills to be employed, and the method of planting fruits and cash crops.65 Customary environmental laws reflect thoughtfully developed policies and practices for the overall benefit of the clans and the environment. For example, tree planting serves to demarcate traditional boundaries and type of forest. The prescribed methods of fishing and farming, including restrictions by which certain traditionally rare species are reserved for the ancestors, have been widely observed. This practice helps prevent species extinction and deforestation. Also, under customary environmental law, whether a tree can be felled for energy, or a plant taken for food or other use, is determined based on the effect of such activity on the overall sustainability of the environment.

65 This is a traditional type of agriculture that allows for the planting of fruits and cash crops after which the land is left uncultivated for a given period of time before it is replanted. 46

In general, Ijaw customary law covers numerous aspects of life, including

ethnology, religion, birth, marriage, death, burial practices, inheritance, youth and adult

societies, social organizations, slavery, land tenure, and fish and water rights. Other

subjects covered include trade, currency, the status of foreign traders, cost of clan

administration, ancient taboos, status and authority of the traditional ruler, the function

and composition of native arbitration panels and awards, individual and family status and relations, and general law enforcement.

In most clans, the spiritual and political leadership duties of traditional clan administration are still performed by the Pere (king or traditional ruler) who is the head of the traditional governance structure. The communities or towns are administered by a council of about fifteen members selected from the various families, depending, of course, on individual usefulness, integrity (not riches or wealth) and the size of the town.

The town council is headed by the Arna Okosuowei (the most elderly man), and the council has no fixed meeting schedule. The council meets whenever there is a matter of importance. The council's meeting venue is always the dwelling house of the Arna

Okosuowei and proceedings are usually public. 66

In all the clans visited in the course of conducting the research leading to this dissertation, there was evidence of agitation calling for change in the selection process of the clan king. This is because the current system in most clans is based on customary law selection procedure tied to social habits, such as Bra-ere tebou (high bride

66 ISAAC CAUTION PREBOYE, THE CORE DELTA: IDUWINI CLAN OTOUNKUKU THE LOST TRIBE 126-27 (2005). 47

price). 67 As such the issue of adherence to the customary law rule of enthroning a

traditional ruler by virtue of social habits and pagan worship is increasingly becoming

unpopular.

Notwithstanding these and other misgivings, in most clans rules are

enforced or observed throughout Nigeria regardless of geographical location. Further,

they are reinforced by the clan welfare associations all over the country and in diaspora.

The clan associations protect the interest and rights of member's nationwide. Clan

members hold meetings at agreed venues. In these meetings members usually contribute

given amounts of money as welfare contributions. These occasions serve as family

reunions, and they help reinforce traditional clan, family and town bonds. Some of these

clan associations also help in securing job or employment opportunities for its members.

They also help in the rehabilitation and care for old and needy members, particularly

those who have recently migrated from rural to urban areas (often without sufficient

resources or preparation).

For these people, clan associations provide welcome accommodation,

known as Arna or ebe-ware (clan house). The clans also help bereaved family or clan members when a member dies. 68 There are visible customary rules amongst the Ijaw that

67 This is a customary law of enthroning a Pere (king or traditional ruler), that allows only male candidates whose mothers are traced to slavery and are believed to be selected through manifestation of a clan deity. These classes of people are now few in number due to the abolition of the slave trade decades ago. The current agitation amongst class members is for the traditional Pere selection process to be more democratic and less discriminatory.

68 In Nigeria, the rising cost of social ceremonies including burial, marriage, and remembrance ceremonies is prohibitive; the welfare obligations of many clans have doubled. The increasing cost of these ceremonies is to a large extent attributable to the existence and observance of 48

burial, marriage, and other ceremonies are customary clan and ethnic duties-members

religiously participate and are usually acknowledged. This is so because clan members

who participate in these activities are well respected and, in times of need, have clan

support.

Finally, as indicated previously, the people of the clans, their way of life,

and their means of livelihood are inter-twined with the environment. In addition to the

examples provided earlier, this interrelationship is evidenced also by the highly-regarded

customary environmental law component of the initiation and installation process for new

kings. For example in all clans surveyed, it was settled practice that in accordance with

tradition, all new kings must personally visit and reconcile his or her soul with the major

natural goddesses (such as rivers, critical forest sites, wild life, lakes, and historic sites)

and swear to uphold these resources, as well as the tradition and culture of their clan.

C. Defining the Niger Delta

In the past, different approaches have been adopted to the problem of

defining the study area, and key elements in the debate and dialogue have been voice,

power relations, and ethnic inequality. To most interviewees, the question of defining

the Niger Delta region is especially sensitive because of the oil and gas resources that are

found there in commercially-exploitable quantities. Further, and critical to the above, the territorial boundaries and the revenues derived therein form the basis for the

strongly held traditional beliefs that every Ijaw person should be buried in his or her home land. This customary rule, in these days of increased mobility cost, causes a lot of problems, particularly the costs of transporting the body to the homeland. 49 governmental allocation of revenues for all tiers of government in Nigeria. 69 Statutory definitions reflect not only authentic documented history, including the anthropological origins of the various ethnic groups, but also their rights in relation to the land, the natural resources, and related rights and entitlements.

The minorities of the core Niger Delta pride themselves on being the indigenous people whose ancestors founded the territory now called Nigeria. 70 One of their principal concerns in this regard is that the majority ethnic groups have used and continue to use their dominance in the nation's major institutions to rewrite Nigerian history. This is to the great disadvantage of its minority inhabitants, and is achieved through deliberate and well-orchestrated misrepresentations.

A problem exists, therefore, with regard to the present definition of the

Niger Delta-a problem with significant implications for justice, freedom, and opportunity of the minority peoples of that region. The present legal definition of the

Niger Delta area, which this dissertation challenges,71 is set out in the Niger-Delta

Development Commission Act ("NDDCA"). That the Act is of considerable consequence to the governance of the region is evident from its title:

An Act to provide for the repeal of the Oil, Mineral Producing Areas Commission Decree 1998, and among

69 CONSTITUTION, Art. 162 (1999) (Nigeria).

7o Id.

71 Colloquium, EIA Recent Trends: In the US and Nigerian Oil and Gas Industry, International Union for the Conservation of Nature, held in Nairobi, Kenya (Oct. 4-9, 2004). 50

other things establish a new Commission with a re­ organised management and administrative structure for more effectiveness; and for the use of the sums received from the allocation of the Federation Account for tackling ecological problems which arise from the exploration of oil minerals in the Niger-Delta area and for connected purposes.72

This Act in effect adopted the area depicted in figure 3 on page xiv in this

dissertation as the territory referred to as the Niger Delta, and rejected that of figure 2 on

page xiii, which is preferred by the core Niger Delta ljaws. Thus there are two

definitions of the study area, and this fact explains the author's use of the phrase "core

Niger Delta." The implications of these definitions in terms of voice, power, ethnicity,

and authority in political relations in Nigeria are many.

First, Niger Delta minorities interviewed believed that the Niger Delta

Development Commission created in Section 1, Part I, of the Act essentially provides a

statutory basis for the dominance of the majority ethnic groups (Hausa-Fulani, Yoruba,

and Ibo) over governance of the Niger Delta and the definition of the area plays a central

role in this ulterior motive. This resulting dominance is said to occur through the Act's

provisions in Section 2 that set forth the basis of membership on the Commission.

Section 2(1)(b) of the Act provides for membership on the Commission by "an indigene

of an oil producing area" and specifies nine states instead of four. Of those states, Abia

72 Niger Delta Development Commission Act (2004) Cap. N23, §§ 2-4 (Nigeria). This statute identified Abia State, Akwa lbom State, Bayelsa State, Cross River State, Delta State, Edo State, Imo State, Ondo Stat, and Rivers State as coastal states that made up the Niger Delta region. It is important to point out that Abia State, Edo State, Imo State, and Ondo States are territories controlled by the majority ethnic groups (Hausa-Fulani, Yoruba, and Ibo tribes). 51

State, Edo State, Imo State and Ondo State are controlled by the ethnic majorities. The

obvious effect is dilution in the influence of minority inhabitants of the region through

their Commission representatives.

Second, the definitional structure legislated in the Act adversely affects

the availability and the allocation of financial resources to the Ijaw and other minorities

in pursuit of the Commission's mandate to provide for the environmental protection and

sustainable development of the region. Thus, the broad mandate of Part II, Section 7(1)

of the Act, and the funds provided for its implementation in Part V, must be allocated

over a larger area and to more states. Most interviewees surveyed attributed inadequate

funding of development efforts in the core Niger Delta region to the lack of will by the

political leadership of Nigeria (dominated by leaders from the majority ethnic groups).

In other words, the minority !jaws believe that the current level of financial resources

allocated to the Niger Delta Commission is too meager to address decades of

environmental degradation and unsustainable exploitation of oil and gas resources in the

region.

As it relates to ethnic balance in the region, the definition of the region to

include about fifteen ethnic groups instead of two (the ljaw and Ogoni) not only

exacerbates the problem of funding availability but also increases the potential for inter- ethnic conflict, as a greater number of groups compete for assistance. These and several other critical concerns were identified by Pere Kalanama Ogiame of Akugbene Mein73 as

73 Interview with HRM Pere Kalanama VIII of Akugbene Mein, in his palace at Akugbene (Feb. 9, 2005). 52 a deliberate plan by the Federal Government of Nigeria to stifle self-determination and strategic sustainable development in the core Niger Delta region.

It is useful to compare the governance structure of the 2000 Niger-Delta

Commission Act with the 1997 Niger Delta Environmental Survey ("NDES"), a private initiative originated by the Shell Petroleum Development Company ("SPDC"). Although the survey was almost entirely funded by multinational oil and gas corporations operating in Nigeria, corporate participation was carried on under the umbrella of the Oil

Producers Trade Section ("OPTS") of the Lagos Chamber of Commerce and Industry.74

The survey, as reflected in its mission statement, provides that:

[T]he NDES would, in concert with the communities and other stakeholders, undertake a comprehensive environmental survey of the Niger Delta, establish the causes of ecological and socio-economic change over time, and induce actions by encouraging relevant stakeholders to address specific environmental and related economic problems identified in the cause of the survey (in order) to improve the quality of life of the people, and achieve sustainable development in the region define and document the peculiar problems of the Niger Delta, and recommend solutions to address the problems.75

The Survey group reported to the government in 1997 that the Federal

Government of Nigeria's definition of the Niger Delta was political and required a re- examination. On its part the NDES gave what it called the cartographic and ethnographic definition of the Niger Delta:

74 NIGER DELTA ENVIRONMENTAL SURVEY, REPORT VIII VOL. 1 xvii (1997).

75 Id. 53

[T]he territory within Nigeria with limit in the North at Aboh; West from the Benin River estuary; East to the Imo River estuary; South to palm point, below Akassa and the Nun River. 76

It is important to point out that the above definition in substance adopted figure 2 (on page xiii in this dissertation). Reacting to the above proposal, the majority ethnic groups and local media sympathetic to their cause mounted an organized and sustained campaign aimed at forcing the inclusion of the majority ethnic groups into the definition of the region (as shown in figure 3 page ix in this dissertation). Part of their effort was the institution of a lawsuit in the Federal High Court of Justice Lagos. George

Opara (a Lagos-based lawyer), who commenced the civil suit, claimed as part of their relief:

A declaration that the proposed establishment of a Niger Delta Development Commission without the inclusion of the Ibo majority ethnic group states of Imo, Ahia and Anambra States is illegal, unconstitutional, unjust, discriminatory, null and void and of no effect whatsoever.77

The Federal High Court declared that the suit was moot. This was because President Olusegun Obasanjo, in presenting the Bill before the Senate of the

National Assembly, adopted the definition of the Niger Delta that maintained the dominance of the majority ethnic groups over the core and aboriginal Niger Delta indigenous minorities (Ijaw and Ogoni ethnic groups). In essence, the government

76 Id. at 13.

77 NIGERIAN GUARDIAN, July 11, 1999, at 21. See also TAMUNO, supra note 31, at 9. 54 adopted the definition of the Niger Delta as contained in figure 3 on page ix of this dissertation. To most interviewees surveyed, the law-making process had been used to contravene notions of geography, equity, and ethnic fairness. Reacting to these actions as a distortion of history and an assault on the minority peoples of the Niger Delta the late Reverend Prince Dadikumo Odondiri78 noted:

There is a specific geographical location referred to, as the Niger Delta with peculiar terrain with peculiar developmental needs. These states are basically Rivers, Bayelsa, Delta, Akwa Ibom; parts of Edo State not even Ondo. We have a rural area [sic] a specific area inhabited by the ljaws principally, the Isokos, the Urhobos, the ltsekiris, the Ogonis as well as some Kwale areas. These are areas that, over the years, money derived from the Niger Delta ought to be spent on. But the fact that Nigeria has spent money on prospecting for oil in the majority ethnic groups areas including the Sahara Desert-Sokoto, Chad Basin in Northern Nigeria should not mean that Sokoto if it has oil should be included as a member State of the Niger Delta Commission. 79

The feeling of marginalization and unfair treatment arising from the implications of the government's definition is not limited to the ljaw and Ogoni. Also commenting on the problem of inaccurate definition of the Niger Delta, Senator David

Dafinone (a prominent Urhobo leader) declared:

78 Reverend Prince Dadikumo Odondiri was the Secretary General of the Niger Delta Ethnic Nationality Movement. He died at the hands of the armed forces of Nigeria. He was denied critical medication for twenty-four hours, during what government officials described as "a routine security questioning." He was buried on December 16, 2002. See generally IKE OKONTA & ORONTO DOUGLAS, WHERE VULTURES FEAST: SHELL, HUMAN RIGHTS, AND OIL IN THE NIGER DELTA (2003 ).

79 Odondiri Dadikumo, Nigeria must recall aspects of the past to guide the future, NIGERIAN GUARDIAN, July 11, 1999, at 13. See also TAMUNO, supra note 31, at 9; Earth Rights Institute, Niger Delta Fund Initiative: Political definition ofN-Delta http://www.earthrights.net/nigeria/news/definition.html (last visited Feb. 18, 2009). 55

[T]he Federal Government of Nigeria has through the Niger Delta Development Commission (NDDC) statute perfected an institutional agenda to further marginalize the minorities, a fact that is unacceptable because it does not reflect the original and true definition of the geographical entity called the Niger Delta: Ahia, Imo, Edo and Ondo States enclaves or appendages of the majority ethnic groups are not part of the Niger Delta. These States have never been known to be part of the Niger Delta; for you to belong to the Niger Delta you must posses certain geographical features. So the geographical entity known as the Niger Delta must not be mistaken for oil and gas producing states. 80

Great Britain Nigeria's colonial master was also faced with similar

problems-defining the region, minorities' fear of marginalization by the majority ethnic

groups, and the under-development of the Niger Delta region. It set up the Sir Henry

Willinks Minorities Commission in 1958 to investigate the Niger Delta minorities

question in Nigeria. Her Britannic Majesty's Commission addressed, with

overwhelming precision, the problem of definition of the Niger Delta and the ethnic

groups that it comprises. According to the colonial report:

This is a matter that requires effort and the co­ operation of the Federal, Eastern and Western Governments; it does not concern one Region only. Not only because the area involves two Regions, but because it is poor, backward and neglected, the whole of Nigeria is concerned. We suggest there should be a Federal Board appointed to consider the problems of the area of the Niger Delta. In this we would include the Rivers Province without Ahoada or Port Harcourt and would add the Western Ijaw Division.

80 David Dafinone, Federal Government Definition ofNiger Delta Area Unacceptable, NIGERIAN GUARDIAN, July 16, 1999, at 2. 56

We suggest that there should be a Chairman and Vice-Chairman appointed by the Federal Government, one representative of the Eastern Region Government and one of the Western Region Government, preferably ljaws, together with four representatives of the people of the areas, who might conventionally be one from the Western ljaws and three from the Eastern ljaws, who would be chosen by local bodies . . . . It should be concerned to direct the development of these areas into channels which would meet their peculiar problems. It should be set up by statute .... We suggest that constitutionally it would be necessary to place on the concurrent list a new subject, which might be "The Development of Special Areas". [sic] It would be open to the Federal Government to announce in the Gazette that a certain area had been classified as "Special" and from that moment special plans for its development would become a Federal as well as a Regional responsibility .... The declaration of the ljaw country as a Special Area would direct public attention to a neglected tract and give the ljaws an opportunity of putting forward plans of their own for improvement. 81

These views were accepted by the Nigeria constitutional conference held

at Lancaster House, London in 1958 and formed the basis for the Niger Delta special

Area Proclamation made by Her Majesty's colonial Government in supplement to official Gazette No. 56. Vol. 46 of September 3, 1959, which stated inter alia that:

In exercise of the power conferred upon the Governor-General by sections of the Nigerian Constitution orders in council, 1954 to 1959, I, James Wilson Robertson Governor-General and commander-in-chief of the

81 HENRY WILLINK ET AL., THE WILLINK COMMISSION REPORT: REPORT OF THE COMMISSION APPOINTED TO ENQUIRE INTO THE FEARS OF MINORITIES AND THE MEANS OF ALLA YING THEM 96-97, ~~ 27-30 (1958) available at http://www.adakaboro.org/thewillinkcomm (last visited Feb. 19, 2009). 57

Federation of Nigeria, do hereby after consultation with the council of ministers and the governors of the Western regions, proclaim that the area of the Nigeria Delta Development Board established in accordance with the section shall be: a. In respect of the Western Region the Western Ijaw division of Delta province; and b. In respect of the Eastern Region Y enagoa province. Degama province and the Ogoni division of Port Harcourt ....82

As the discussion above demonstrates, the very definition of the Niger

Delta Area is a matter of considerable debate and disagreement. Yet, how the region is

defined has had, and will continue to have, substantial implications both to the nature and

quality of the lives of the minority ethnic groups that inhabit the area, and to the

possibilities for true sustainable development there. In this regard, it is of considerable

significance that the present legal definition, promoted by the Obasanjo regime and

enacted in to law by the Nigerian National Assembly, is not only widely unpopular

among the core Niger Delta ethnic minority, but also unsupported by numerous and

varied influential sources. This dissertation is in accord with those critics and offers reforms that would actually achieve the objectives that present law and policies merely

purport to be supporting.

82 Niger Delta Development Board (Supplement) No. 56 (1959) 0. G., A46 § 3 (Nigeria). 58

D. History of Exploitation of the Niger Delta

The history of exploitation of the Niger Delta environment and its

inhabitants is difficult to document with empirical precision. This is because neither

writing nor record keeping were widespread in the early period of exploitation. In most

cases traditional knowledge and events were passed on to generations by means of oral

tradition, folklore, and the like. To most interviewees, the written documentation of key

aspects of the Niger Delta exploitation is most probably reflected in the records of

foreign slave merchants and mercantile shippers. But these records are typically located

in Europe and the United States, and they are usually not in the public domain. This

explains why each family, town, and clan prides their traditional orators' accounts of the

history of exploitations.

Nevertheless, most Ijaw interviewees surveyed were quick to express the

view that the history of their exploitation lasted for centuries. But while specific

historical records are lacking, the fact of the exploitation and its injuries are not in doubt.

Therefore, what is most required now is to find sustainable solutions to the complex

problems that are the legacy of this history.83

Certain effects of this exploitation over the centuries are noteworthy.

First, before the advent of British Colonial rule, the Dutch, German, Spanish and

Portuguese mercantile merchants exploited84 the unique natural resources of the Niger

83 T AMVNO, supra note 31, at 14.

84 MARGARET T. 0RORODUDU-FUBARA, LAW OF ENVIRONMENTAL PROTECTION (MATERIAL AND TEST) 1-2 (Caltop Publications Nigeria Ltd. 1998). 59

Delta Region without reference to the people's traditional, political, economic, social, or

cultural interests. Basically, the Niger Delta People and their environment suffered at the

hands of these visitors from the 14th through 18th centuries, including the pervasive,

systemic destruction caused by the slave trade.

Second, the slave trade decimated the human populations beyond

recovery. In all the clans visited and interviews conducted in the course of this

dissertation, a general behavioral pattern of early marriage and single parenthood was

traced to the slave trade and related practices. For example, a new customary law on

early marriage and child bearing by young, unmarried people became widely practiced.85

The customary law on procreation, although alarmingly liberal, was a basic defensive

mechanism to the slave trade. This also accounts for why Ijaw communities had to move

to several locations in search of the most difficult terrain, which served as a physical

barrier to the slavers.86 According to Pa Zaria Torukro these were the people forcibly

taken by the thousands, first as captives by foreign slave merchants (with the aid of

middle men from the majority ethnic groups of Nigeria), and then as cargo shipped to

various other parts of the world where they were to live and work as the property of their

owners.87

85 Interview with Alaowei Meetini Tamaramienyefa, The Ebe Bebeareowei of Oporomor Sub-Clan in Delta State Ndoro (Aug. 17, 2004).

86 Interview with Pa Zaria Torukro, Egade Okosuowei, Oyateigha Ojobo (Apr. 7, 2005).

87 Id. 60

Third, there is a nexus between the current minority status of the core

Niger Delta people, particularly, the Ijaw in Nigeria, and the slave trade. This is because

population is a dominant variable in the allocation of federally collected revenue in

Nigeria by virtue of the constitution.ss Also, it is the major determinant of the number of

states, local government councils, and, above all, the number of representatives allocated

to an ethnic group in the institutions of government. s9

Although there are rarely precise figures, population figures of the Niger

Delta region after the abolition of the slave trade do indicate a pattern of abnormal

stagnation in this respect, and there is no causative factor other than the trade in slaves

that explains the phenomena.90 The point needs be further made that emphasis on

population loss is highly relevant to the implications of the history of exploitation. This

is because population growth played a major role in the socio-economic development of

other societies by providing labor, markets, voice, and political authority, which led to

further advance.91

Whatever can be said of exploitation, there is a relation between the

degree of destitution of the Ijaw people of the core Niger Delta and the length and nature

of the exploitation they endured. This fact was more evident when I visited all the

88 CONSTITUTION, Art. 162 (1999) (Nigeria).

89 Id.

90 Interview with Pere Egran the 5th ofOporomor Sub-Clan Delta State (Aug. 18, 2004) (emphasis added).

91 wALTER RODNEY, How EUROPE UNDERDEVELOPED AFRICA 103-06 (1976). 61

traditional clan and sub-clans of the study area in pursuit of this dissertation. In most

cases, the interviewees surveyed are clear in their description of how under- population

through the slave trade, political colonialism by Britain, and now, marginalization in

Nigeria (by the majority ethnic groups) reduced their potentialities.

Fourth, the abolition of the slave trade in 180792 and the subsequent

promulgation of the Freed Slaves Emancipation Act in 1833,93 gave rise and opportunity

to the so called European humanitarian groups94 and protagonists of legitimate trade and

commerce to further exploit the Niger Delta environmental resources (timber, pine,

spices, seafood, and the like) in an unsustainable manner. The 1920s through the 1950s

witnessed the increase in the number of foreign merchants with business outposts in the

Niger Delta. Particularly, Great Britain and the Royal Dutch Shell Company

successfully explored and discovered oil in commercial quantities at Oloibiri (the heart of

Ijaw homeland) in the Niger Delta.

Fifth, the Niger Delta ethnic minorities lack equitable representation in the

current governance structure of Nigeria. They want constitutional protection of their

rights.95

In this regard, the Niger Delta people want it understood that Nigeria is a multi-ethnic federation in which all ethnic groups ought or are equal irrespective of

92 An Act for the Abolition of the Slave Trade, 1807, 47 Geo. III, c. 36 (U.K.).

93 Slavery Abolition Act, 1833, 3 & 4 Wil. IV, c. 73 (U.K.).

94 RODNEY, supra note 91.

95 Ken Saro-Wiwa, Oil and the Issues at Stake, NIGERIAN GUARDIAN, Apr. 1, 1994, at 21. 62

current size or political voice and power. Thus, no majority ethnic group (Hausa-Fulani, Yoruba, and Ibo) should be split into several states or units including local government or development authority areas or even a federal capital territory area, ostensibly to have an increased share of oil and gas revenue from the core Niger Delta.96

E. Implications for the Niger Delta

The history of exploitation thus presents identifiable implications for the

Niger Delta and its people. One clear implication for the Niger Delta people is power-

sharing. Nigeria has 36 states, 774 Local Government councils, and a Federal Capital

Territory (FCT).97 The Hausa-Fulani ethnic group controls 16 states and 428 Local

Governments. The Yoruba control 6 states and 144 Local Government councils. The

Ibo control 5 states and 100 Local Government councils. The core Niger Delta ljaw are

balkanized into 6 states and they only control one (Bayelsa).

The second implication for the Niger Delta people is that their existence is threatened by unsustainable exploitation of oil and gas resources. This grim

environmental reality was confirmed by the NDES. According to the survey report:

[T]he people who live in the Niger Delta region bear the brunt of the social and environmental impact of costal erosion, flooding, sea level rise, fishing and forest resources losses, water contamination and over­ exploitation due to oil pollution and gas flaring. 98

96 Id.

97 CONSTITUTION, Art. 1-3 (1999) (Nigeria). 98 NIGER DELTA ENVIRONMENTAL SURVEY, supra note 74, at xvi. 63

The salient question, however, is that if the oil and gas resources run out, on what will future generations of the core Niger Delta people (already disadvantaged in the governance structure of Nigeria) sustain themselves? It is for this and similar reasons that countries like the United State and Canada have put in place proper legal and institutional arrangements to ensure sustainable exploitation of environmental or natural resources. 99

The third implication for the Niger Delta people is the socio-economic and cultural rights of indigenous ethnic minorities, particularly in relation to environmental and natural resources exploitation. As a practical matter, this brings into play legal issues such as ownership of land, rents, and royalties derived from oil and gas exploration and

99 INTERNATIONAL PETROLEUM INDUSTRY ENVIRONMENTAL CONSERVATION ASSOCIATION ("IPIECA"), BIODIVERSITY AND THE PETROLEUM INDUSTRY: REPORT, VOL. 3 10-18 (2000). IPIECA was founded in 1974 following the establishment of the United Nations Environment Programme ("UNEP"). It is the petroleum industry's principal channel of communication with the United Nations. In this report the petroleum industry showcased several case studies. The first case study examined Baker's Creek Watershed, which lies within the Tennessee River basin in north Alabama and includes a wetlands rich in aquatic plants and wildlife. Within this river, lies BP Amoco's Decatur Facility. As a result of good environmental laws and institutions, the management of the company improved 530 acres of unused land and created a wildlife enhancement and community education area. This allowed Decatur to expand the wetland area by twney-five percent, and construct additional nature trails, in partnership with the community, local government, neighboring businesses, and national entities. The second case study examined BP Amoco on Alaska's North Slope. IPIECA claimed that the company's annual oil production is 2 million barrels a day. The North Slope is also home to approximately 6000 Inupiat people. Although the Inupiat settlements are not adjacent to oil fields, BP Amoco is contends that its operations do not adversely affect their way oflife or the natural resources on which they depend. Consequently, the environment of the North Slope is closely scrutinized by environmental groups and government agencies on local, state, and national levels. Intense efforts to manage and minimize environmental impacts have ensured that the natural vegetation and wildlife populations continue to thrive alongside oil production in the area. A third case study looked at Canadian Oxy in Western Canada. Exploration and production activities in western Canada bring the company into contact with Aboriginal communities, which offers the Corporation an opportunity to establish innovative approaches to ensuring socially­ responsible economic development. IPIECA claims this strategy is directed at creating mutually beneficial relationships with Aboriginal communities. The strategy is aimed at creating programs to encourage Aboriginal people to participate in industry activities, and thereby capture some of the economic benefits of oil and gas in proximity to their communities. 64

exploitation. Royalties are a major inducement for a wide variety of transactions in the

oil and gas industry .100 A royalty is paid to the owner of land for minerals mined and

extracted from his soil. 101 The Niger Delta oil and gas producing communities and their

people demand that this right be entrenched in the constitution of Nigeria. Out of 796

interviewees questioned, 507 interviewees believe this demand is non-negotiable-a

result of their experiences in the Nigerian experiment. 102

Fourth, there is the inextricable nexus between the Niger Delta question

and the current U.S.-led war on global terrorism. In Nigeria, oil and gas resources are

found and explored mainly in the core Niger Delta. These indigenous minority

populations are predominantly pagans, atheists, Christians (orthodox or unorthodox), and traditional religious worshipers. But in most states controlled by the majority ethnic populations, residents are predominantly Muslims. The principal concern of the Niger

Delta minorities is that past assaults on them by Muslims from Northern Nigeria should never be countenanced. Further, the government should not appropriate either oil and gas resources or profits and provide them to those same Northern Nigerians to support

ioo EUGENE 0. KUNTZ, JOHN S. LOWE, OWEN I. ANDERSON, SMITH & DA YID E. PIERCE, CASES AND MATERIALS ON OIL AND GAS LAW 287 (3d ed., 1998).

101 Id.

102 In contrast, the few interviewees surveyed on this issue believe that the United States' situation is a better arrangement because it is entrenched in the constitution that, "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." CONSTITUTION art. IV, § 3, cl. 4. In practice this power is delegated to the Secretary of the Interior, who has authority to issue mineral leases under the Mineral Leasing Act. 30 U.S.C. §§ 181-287 (1920). The Secretary also has authority to issue leases under the Outer Continental Shelf Lands Act. 43 U.S.C. § 1337 (1953). In all these basic statutes oil and gas royalty is 12' I2 percent or more depending on the actual royalties or value of the production. See Mineral Leasing Act§ 226(b)-{c). 65 improper and unjust actions on their part. This fact is generally seen by most foreigners as obscure, rarely getting the attention it deserves, but it is critical because the core Niger

Delta people do not see any reason to allow the continuous flow of oil and gas from their home lands if the manifest purpose is to fund Jihad against the United States or others.

These concerns are deep-seated and troubling, because cultural intolerance leads to prejudices which in tum fuels ethnic conflict in Africa. Commenting on the building tensions in this area, one of America's visionary legal scholars observed:

Thus, not only were the persons we would visit high government officials, they were also well placed in the inter-woven ethnic and religious cultures of the country (some were tribal chiefs, others religious leaders, others wives of influential men). Finally, we went to the north, to Kaduna, a sort of microcosm of Nigeria, with its majority of Muslims and minority Christians always at a tipping point into violence. The trip by car was revealing. Along the way, I saw the extreme poverty, ignorance, and desperation that provided a continuing impetus to violence and instability. Once in the North, I saw a continuation of these conditions, but there were a few interesting additions. Young boys there could be seen with tee-shirts bearing words like "I like Osama," and Muslim men from Arab countries were present and carrying on business matters in much larger numbers than in the south. One constantly heard claims that radical Islamic influences from countries like Saudi Arabia, the Sudan and Iran were extremely strong. For all the talk we do today in the world about diversity and cultural differences, so often we deal with these concepts abstractly, and we usually have the luxury of avoiding any true inquiry and experience-until forced. Sadly, I fear that these insights and skills are being acquired too slowly these days (even by global leaders) and that the need for them and correspondingly the losses 66

caused b6: the lack of them grows almost exponentially by the day. 1 3

The foregoing discussion sought to clarify the substantial and enduring implications for Niger Delta minorities of the choices for governance of the people and the environment in that region. The remainder of this dissertation will further establish and analyze the salient aspects of this topic and proceed towards proposals for reform of the present structure for governance in Nigeria.

103 Perry E. Wallace, The Amina Lawal Shari'a Stoning Case and Nigeria's Dance with Progress and Peril: Culture, Religion and Law in Conflict with Modernity (Nov. 2005) (unpublished paper on file with the author). ..

CHAPTER TWO

MODERN HISTORY OF OIL EXPLORATION AND DEVELOPMENT, STATE

OWNERSHIP, AND MULTINATIONAL CORPORATIO NS IN THE NIGER DELTA

A. History of Oil Exploration and Development and State Ownership

The modem history of oil exploration in the Niger Delta is effectively one of mutual cooperation and benefit on the part of majority ethnic groups in Nigeria and foreign interests. The specific mode and form of such collaboration has been through

European (and later Asian) corporate entities acting ultimately as agents promoting the national interests of their home countries and through the Nigerian Government, in effect, promoting the interests of majority ethnic groups in Nigeria.

The earliest history of oil and gas exploration in Nigeria is documented in the pioneering 1908 geophysical surveys prepared by a German entity called the Nigerian

Bitumen Company. 104 With its head office in Ijora Lagos and its operational office in

Owerri, the company's operations were abruptly stopped upon the outbreak of military hostilities of the First World War in 1914. After the hostilities ceased, the German company did not resume operations in the country, and the Shell D' Arey Company

("Shell") took over the operations in Nigeria. The new company was owned by the Royal

104 NIGERIA NATIONAL PETROLEUM CORPORATION, DIARY OF EVENTS AND ACTIVITIES 6 (2005).

67 68

Dutch/Shell and British Petroleum BP (a British state--0wned consortium). The outbreak of the Second World War forced Shell to suspend exploration activities in 1941. 105 Shell resumed operation in 1946 at Oloibiri-Niger Delta (in present day Bayelsa) and the company, later known as Shell Petroleum Development Company of Nigeria Limited, was at the center oil and gas operations in Nigeria.

The American entrepreneurs were slow in entering the Nigerian oil and gas exploration and exploitation industry. 106 But a locally incorporated business entity called Gulf Oil Company (Nigeria) Limited, with American financiers, commenced the exportation of unrefined crude oil from Nigeria in mid 1965. 107 This was followed by a

French business outfit, which later became ELF Nigeria Limited. 108 The Italian consortium Agip also had an oil and gas firm known as Nigerian Agip Oil Company

Limited (NAOC), which joined the oil and gas export business on July 17, 1967. 109 By the latter part of 1967, the outbreak of the Nigeria Biafra Civil War led to suspension of oil and gas exportation, particularly from the onshore areas of the Niger Delta. Only the

American-financed Gulf Oil Company managed to continue oil and gas export to their

105 TUNDE OREMADE, PETROLEUM OPERA TIO NS IN NIGERIA 1 (West African Book Publishers 1986).

106 Mineral Act, (1948) Cap. 135, § 6(l)(a) (Nigeria). This section provides, in effect, that oil and gas licenses could only be made to British subjects and to those companies which had their principal places of business in Great Britain or in its dominions and whose chairmen or majority shareholders and directors were British subjects. This clause remained until it was replaced by section 2 of the Mineral Oils (Amendment) Act of 1958.

107 Id. at §§ 3--4.

108 GODFREY ETIKERENTSE, Nigeria Petroleum Law 2, 8 (2d ed. Dredew Publishers 2004).

109 Mineral Act, (1948) Cap. 135, § 3 (Nigeria). 69

country, and this essentially from its offshore operations. Mobil Producing Nigeria

Unlimited (Mobil) commenced oil and gas export from its oil and gas fields in Ibeno

(ljaw Country) and the old Cross-River State frontiers.

As at October 1, 2005 there were a total of 198 oil and gas companies

operating in Nigeria. The estimated total output of oil and gas is about 2.5 million

barrels a day. 110 There are currently about 2600 oil wells and related production

facilities, with several kilometers of pipeline criss-crossing the Niger Delta. 111 The main

types of crude oil produced from the Niger Delta of Nigeria are peculiar, as it comes with

distinct characteristics in terms of gravity, wax sulfur content and chemical profile.

Nigeria crude oil is rated 26-40 degrees light, sweet and mostly non-waxy. 112 The low

content of sulfur makes it highly attractive to overseas refineries. 113 This, in tum,

explains the overall importance attributed to oil and gas in Nigeria and the actions taken

by the government in relation to its exploitation.

Government policies and practices in this area have increased the nation's

dependence on oil to the extent that the Nigerian economy today, and perhaps over the

next five decades will be heavily dependent on it. For example, in an attempt to increase

110 NIGERIA NATIONAL PETROLEUM CORPORATION, HAND BOOK 27 (2005). This figure is supported by the Organization of the Petroleum Exporting Countries ("OPEC") and other authoritative sources on oil and gas exports from Nigeria.

111 Interview with Egineer Jimmy Agbeyei, in Lagos, Nigeria (Sept. 12, 2005) (conducted at Agbeyei's office at NAPIMS).

112 OREMADE, supra note 105 at 5.

113 Id. 70 its revenue base and in order to make the Niger Delta Crude oil and gas more competitive, the government facilitated the active presence of transnational maritime cargo tankers and other related marine vessels. Relative to this addition, the government constructed inland, river, and seaports in and around the core Niger Delta. In addition, government and the multinational oil and gas corporations embarked on massive dredging of natural waterways to enable them to access oil and gas storage facilities constructed under the joint venture operations. To enable the easy transportation of oil and gas, pipeline facilities were constructed to facilitate export

Nigeria is also greatly endowed with natural gas, which is usually found with crude oil. Most industry analysts believe that crude oil production of about 2.5 million barrels per day is accompanied incidentally by an estimated 160 trillion cubic feet ("TCF") of natural gas. There are potential ready commercial markets for this fossil fuel, both domestic and foreign, at a level of 1.7 million cubic feet per day. 114

As discussed in chapter three of this dissertation on environmental effects of these operations and in chapter seven on environmental enforcement, environmental degradation has been one of the prominent by-products of these operations. Moreover, as also recounted throughout, there have been associated adverse social and economic impacts on the inhabitants of the Niger Delta.

114 NIGERIA GAS COMPANY, NATURAL GAS UTILIZATION 1, 7 (2005). 71

Comment on the Basis and Legal Framework for Absolute State Ownership of Oil and Gas Resources in Terms of National Development and Power Relations

Although a number of laws and policies underlie the exploitation of oil

and gas in Nigeria, the following discussion isolates certain ones that are particularly

important in analyzing the political and power relations that are central to this

dissertation.

International Law and Policy Basis

The concept of absolute state ownership of resources is premised on one

of socialism's founding ideologies. This principle presupposes that a sovereign state has

unfettered legal right to regulate, control, manipulate, or dispose of all resources found

within its territory (including abusing oil and gas). 115 Absolute state ownership to this

extent presupposes "that Nigeria has exclusive legal rights to [use and] even abuse its oil

and gas resources without let or hindrance from the international community." 116

Professor Amaichi Uchegbu further posits:

The socialist concept of absolute state sovereignty over the natural resources which inhabit a state is a basic principle of international law. The principle enunciates that independent states have a right to control, regulate, dispose of or conserve their natural resources in any way they so desire. Sovereignty over natural resources imply therefore the right of a state to use, enjoy and even abuse

115 Amaichi Uchegbu, The Doctrine ofPermanent Sovereignty Over Natural Resources 2 (May 29-June 2, 1984) (presented at the Nigeria National Workshop on Petroleum Law held at the Department of Jurisprudence and International Law, University of Lagos).

116 Id. Professor A. Uchegbu is Nigeria's foremost socialist scholar and a respected legal luminary. 72

the use of its natural resources. The resources belong to the state that exercises exclusive jurisdiction in determining the mode and the fact of their disposals. Being a right which inheres in a state there is a corresponding duty on the world at large not to interfere with the state's legitimate exercise of its sovereignty over natural resources. The concept of permanent sovereignty is an innovation which has its embryo from the UN General Assembly Resolution 626 (VII) of December 21, 1952. The resolution asserted that 'the right of peoples freely to use and exploit their natural wealth and resources' is inherent in their sovereignty. The resolution was opposed by western countries, especially the U.S.A. 117

In Nigeria, the above expressed view point has been used to justified absolute state ownership of oil and gas resources since the country's independence. 118

117 Id (quoting G.A. Res. 626, if 1, U.N. GAOR, 7th Session (Dec. 21, 1952) available at http://www.un.org/documents/ga/res/7 /ares7 .htm.

118 It is important to point out that in this Resolution the United Nations General Assembly declared that:

1. The right of peoples and national to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well being of the people of the state concerned;

2. The exploration, development and disposition of such resources, as well as import of the foreign capital required for these purposes, should be in conformity with the rules conditions, which the peoples and nations friendly consider to be necessary or desirable with regard to the authorization, restriction or prohibition of such activities;

3. In case where authorization is granted, the capital imported and the earnings on that capital shall be governed by the terms thereof, by the national legislation in force, and by international law. The profits derived must be shared in the proportions freely agreed upon. In each case, between the investors and the recipient state, due care being taken to ensure that there is no impairment, for any reason, of that State's sovereignty over its natural wealth and resources.

4. Nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest, which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases the owner shall be paid appropriate compensation in accordance with the rules in force and in the state taking such measures in the exercise of its sovereignty and in accordance with 73

Such a formulation, at first blush, might appear credible, particularly as it relates to the applicability of customary international law. But a closer analysis reveals the view to be unsupportable. First, the resolution is not a treaty and thus does not have binding effect. Further, it is susceptible to various interpretations, including its conformity to any given ideology. Notably, and more to its true letter and spirit, the resolution is a beneficial policy promoting the broad rights of "peoples and nations" (and not just "nations") to permanent sovereignty of their natural wealth and resources. It is also an admonition that such sovereignty should be "exercised in the interest of their national development and of the well being of the people of the State concerned" (Again, the reference is to the "people" of a State and "their national

international law. In any case where the question of compensation gives rise to a controversy, the national jurisdiction of the taking such measures shall be exhausted. However, upon agreement by sovereign States and other parties concerned, settlement of the dispute should be made through arbitration or international adjudication;

5. The free beneficial exercise of the sovereignty of peoples and nations over their natural resources must be furthered by the mutual respect of State based on their sovereignty equality;

6. International co-operation for economic development of developing countries, whether in the form of public or private capital investments, exchange of goods and services, technical assistance, or exchange of scientific information, shall be such as to further their independent national development and shall be based upon respect for their sovereignty over their natural wealth and resources;

7. Violation of the rights of peoples and nations to sovereignty over their natural wealth and resources is contrary to the spirit and principals of the chapter of the United Nations and hinders the development of international co-operation and the maintenance of peace, Foreign investment agreement freely entered into by, or between sovereign shall be observed in good faith; States and international organizations shall strictly and conscientiously respect the sovereignty of peoples and nations over their natural wealth and resources in accordance and Charter and the principle set forth in the present resolution. 74 development.") Thus, the resolution is more truly an expression supportive of self- determination and sustainable development than the adoption of any particular ideological approach.

Municipal Legislative Basis

The Land Use Act

The Land Use Act is a federal statute originally enacted as a decree under the military regime of President Olusegun Obasanjo. The Land Use Decree of March

1978 was subsequently enacted as the Land Use Act of 1978, and Section 1 of that Act provides that "[A]ll land comprised in the territory of each State in the Federation are hereby vested in the governor of that State and such land shall be held in trust and administrated for the use and common benefit of all Nigerians in accordance with the provisions of this Act." 119

According to most scholars and government officials, the above provision essentially vests all land in Nigeria, including natural resources located in or on it, in the federal Government of Nigeria for the benefit of all Nigerians. This, according to scholars such as M.M. Olisa, was for the following purpose:

[A ]uthorizing the oil companies to conduct exploration and production work and at the same time controlling their activities, Government asserted its sovereign rights over Nigeria's petroleum resources by

119 Land Use Act, (2004) Cap. L9, § 1 (Nigeria). See also J.A. OMOTOLA, ESSAYS ON THE LAND USE ACT 1978 8 (Lagos University Press 1984). 75

granting oil exploration permits, oil prospecting licenses and oil mining lease to the Foreign-owned oil companies. There was also the need for an effective Government regulation as the role of government expanded in the industry. 120

In support of the absolute state ownership by Nigeria, Tunde Oremade argued that

Section 1 of the Land Use Act vested all land comprised in the territory of each state in the Federal Military Government of that state and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the Act. Before the promulgation of the Land Use Act in 1978, land required by oil companies was acquired through negotiation with landowners and the process was cumbersome and exorbitant. 121

This dissertation argues that, in the core Niger Delta of Nigeria, the indigenous minority people (Ijaw and Ogoni) have lost their fundamental right to the beneficial use and enjoyment of the land, including the environment or natural resources, by virtue of the legal effect of the Land Use Act, 122 particularly under the interpretation ascribed to the

Act by the majority ethnic groups.

The Petroleum Act

The legislative history of this Act dates back to the principal statute of

1969. This statute was radically amended to give majority ethnic groups and

120 M.M. Olise, Role ofthe NNPC in the Nigerian Oil Industry 251 (May 29-June 2, 1984) (presented at the Nigerian National Workshop on Petroleum Law held at the Department of Jurisprudence and International Law, University of Lagos).

121 Id. at 258.

122 The Land Use Act, (2004) Cap. L5, § 1 (Nigeria). 76

multinational corporations control over oil and gas resources. 123 Section 1 of the Act

provides that the "entire ownership and control of all petroleum in, under or upon any

lands to which this section applies shall be vested in the State."124 In effect, the Act

applies a socialist approach of absolute state ownership in oil and gas resources to land in

the country, under its territorial waters, or forming part of the continental shelf.

Many are of the view that the aim of legal measures and policies, such as

those discussed above, have had both the intent and effect of denying the Niger Delta

minority people (ljaw and Ogoni) their customary and pre-colonial rights over natural

resources (oil and gas) and vesting those rights in Nigeria, for the benefit of the majority

ethnic groups who use the oil and gas revenues to enrich themselves. 125

B. Multinational Corporations and the Legal Structure of Oil Exploration and Development

The culmination of the history of oil exploration and state ownership of

Nigerian land and natural resources has been a complex set of relations between the

Nigerian Government and multinational corporations, with profound and widespread

socio-economic consequences:

The relations between the oil producing Niger Delta communities, the oil and gas prospecting companies and

123 Petroleum Act, (1990) Cap. P23, § 33 (Nigeria). The earlier amendments include: the Petroleum (Amendment) Decree (No. 16) 1973, Petroleum (Amendment) Decree (No. 49) 1976, Petroleum (Amendment) Decree (No. 370 1977, the Petroleum (Amendment) Decree (No 26) LFN (1990).

124 Petroleum Act (1990) Cap. P23, § 1 (Nigeria).

125 Gani Fawehinmi, The State ofthe Nation- Danger Signals, 159 (Nigerian Weekly Law Review Publications 2002). 77

the Federal Government of Nigeria are complex. The Government and the multinational oil and gas corporations invariably seek to optimize their interests and maximize profit in the national and international arena of oil politics, to the detriment of the host communities. The conflict of interests, the economic and social problems of communities associated with oil and gas exploration in the region, the reality of environmental degradation as well as the insensitivity of the Nigerian state to the plight of the people, have become pressing matters for deliberation. Experts and fair opinion have identified the root cause of the region's crisis as poverty and neglect by the federal government. The long and concerted struggle for socio­ economic justice has been suppressed with greater might.126

Oil and gas exploitation in Nigeria occurs through several legal structures. It is through

these that the system of cooperation and collaboration between the Nigerian Government

and the multinational corporations takes place: (i) legislation; (ii) petroleum agreements;

(iii) Mrginal oil blocs and profit sharing concessions; (iv) participation agreements (i.e., joint ventures, joint stock enterprises, and service contracts).

Legislation

Through legislation, the Nigerian Government promulgates a decree or

act, which sets out who is empowered to carry out oil and gas exploration, production,

and exploitation. The multinational corporations so named or permitted in the legislation are accorded absolute control to operate and decide how much revenue has accrued to a joint escrow account, which is itself administered by the corporations in the course of

126 STEVE AZAIKI, INIQUITIES IN NIGERIAN POLITICS 12 (2003). 78 their activities. Based upon the terms of the decree, a corporation might be granted a lease for a duration of as much as 99 years. The majorities of the decrees were promulgated between 1956 and 1979 and were typically highly favorable to the corporations.

Petroleum Concession Agreements

Essentially, a concession agreement is a grant by the Nigerian Government to multinational corporations to exploit oil and gas reserves under which absolute proprietary, pecuniary, and decision-making rights are vested in the concessionaire. These concession agreements always have a protective general clause, for example:

This concession shall not be annulled by the government and the terms therein contained shall not be altered either by general or special legislation in the future, or by administrative measures or any act whatever of the executive authorities. 127

Throughout the existence of these concessionaire agreements, the

Government of Nigeria has only been entitled to royalties. In the past, some of the concessionaire agreements between the Nigerian Government and Shell Petroleum

Development Company were for extraordinarily long terms of up to 99 years. 128 The multinational corporations provided all of the investment capital and were entitled to all

127 S.K. Date-Bah, Nationalization and Its Effect on Concession Contracts 12 (Dec. 15-19, 1984) (presented at Nigerian National Workship on Petroleum Law held at the University of Lagos).

128 J.O. Fabumni, The Legal Framework ofNational Control ofMineral Oil Reserves in Nigeria 24 (May 29-June 2, 1984) (presented at Nigerian National Workshop on Petroleum, held at the University of Lagos). 79

of the profits except the tax they pay to the government. The Government of Nigeria

also undertook the obligation to provide armed security for the protection of concession

operations.

Joint Stock Enterprises

This is a legal arrangement in which the Government of Nigeria, through

the Nigerian National Petroleum Corporation ("NNPC"), establishes a joint operating

company with one or more private companies. This was the case with the Port Harcourt

Refinery Company and the Bonny Liquefied Natural Gas Company, in which the

concessions provided revenue percentage ratios of 60%, 20%, and 20% to the federal

government, Shell ("SPDC"), and British Petroleum ("BP"), respectively. 129 SPDC and

BP also acted as the technical advisers. Joint company management was controlled by the corporate partners through their representatives on the company boards.

An agreement of this nature typically remains valid until the NNPC

personnel assigned to the operation develop adequate technical skills. The multinational corporations provide skilled technical personnel. Thus, while such the structure reflects both a certain degree of necessity (with respect to the need for technical skill) and an opportunity for skills acquisition by the Nigerian workforce, it no doubt accounts for the high expatriate employment quotas in the Nigerian oil and gas industry. Further, this

129 ETIKERENTSE, supra note I 08 at 24. 80

expatriate presence has also been the justification for the extensive government-supplied

security forces in oil-rich regions like the Niger Delta. 130

Marginal Fields

Marginal fields are a type of contractual agreement that confers rights to

conduct oil and gas operations in such areas as the head of state or Commander-in Chief

of the Armed Forces of Nigeria may from time to time identify as a marginal field. 131

These agreements require that larger companies, often holding oil mining leases, farm out

these oil blocs to indigenous small companies (Marginal Field Operators) who could

extract the reserves profitably because of their low overhead costs. The marginal fields

oil and gas agreements are governed by guidelines issued in August 2001 and

administered by the Office of the Presidential Adviser on Petroleum and Energy. It must

be noted that most of these agreements apply to areas in which oil and gas operations

directly raise critical sustainable development issues as it relates to the indigenous

peoples residing therein.

130 This argument is vulnerable to criticism on the basis that, ifthe indigenous ethnic minority people were more fully and meaningfully integrated as stakeholders in oil and gas operations, such security costs could be avoided.

131 Petroleum Act (2004) Cap. PlO, § 16(a) First Schedule (Nigeria). Such arrangements have been criticized as concentrating inordinate amounts of power, without sufficient checks and balances, in the oil companies: "In fact, a succession of Nigerian governments has survived as a result of the huge revenues generated by oil and gas. The leaders themselves have routinely benefited from the oil revenue, making millions and millions of dollars." KEN-SARO WIWA, A MONTH AND A DAY DETENTION DIARIES xii (1999). 81

Participation Agreements

Joint ventures, service contracts, and joint stock enterprises are variations

of the collaboration agreements used between the Government of Nigeria and

multinational corporations. Under these joint arrangements, the government-owned oil

and gas corporation NNPC is in operational partnership with one or more corporations.

Because the multinational corporations provide the management staff for these ventures,

they effectively control them as in the SPDC-NNPC and Chevron-NNPC joint operating

agreements.

Notably, in all these variants, the government of Nigeria provides armed

military personnel as part of its obligation to provide physical security to the

multinational corporations. The companies, in turn, supply the troops with ammunition,

troop gear, tanks, trucks, assault rifles, grenades, telescopes, bullets, and other

complementary security items. Further, security activities are taken seriously, and related

organs of government tend to be quite permissive in allowing rigorous protection of joint

venture operat10ns.. 132

132 In September 1998, Samuel Metseagharun, the chairman ofUgborodo community, protested the forcible acquisition of communal ancestral land by Chevron Nigeria Ltd., the managing partner of a joint venture with the NNPC. For demanding compensation, he was murdered. The surviving relations took the case to the Truth and Reconciliation Commission, which declined to hear the case, ostensibly because of the interest in the land on the part of the Federal Government of Nigeria and the American oil giant Chevron. The civil courts could not commence hearing on the case for two years because the law enforcement and justice department officers had specific instructions from the government not to serve legal process on the Chevron officers that had been indicted. It took Hon. Justice R. N. Pemu, presiding Judge of the High Court of Justice Delta Effurun, more than courage to grant leave for all court processes in respect of the suit to be carried out. 82

The terms of joint venture agreements are always almost heavily weighted

in favor of the multinational corporations. Further, several features account for, or

facilitate, the absolute and exclusive control of these ventures. This includes the fact that

only in August 1984 did the parties begin to sign formal written agreements. This, in

tum, created difficulties in ascertaining the precise nature and scope of the lands and

natural resources acquired. Proper accounting for resource inventories and revenue totals

or allocations were similarly rendered unverifiable and therefore suspect. Additionally,

because of the "undivided" nature of the rights granted under these agreements, grantee

companies and granted lands were exempt from coverage of tax and other property-

related legal obligations and duties.

As to all of the aforementioned arrangements for exploitation of Nigeria's

oil and gas resources, what is notably absent is the inclusion of local communities in the

decision making and implementation processes. Thus, the absence of transparency and a

reliable mechanism for imposing accountability on both the private and public

participants lie at the foundation of the adverse impacts sustained in many regions

impacted by oil and gas operations.

C. Benefit Sharing and Revenue Allocation in the Niger Delta

Government policies on the allocation of the considerable revenues deriving from oil and gas activity in the Niger Delta bear heavily on the ability of that 83

region and its people to achieve the freedom and prosperity that they desire. Indeed, it

has been observed that:

At the heart of discontent among the oil producing communities is an acute sense that the wealth derived from their land is siphoned off by the federal government and never returned: the seemingly dry debates on revenue allocation formulae are central to the cycle of protest and repression. 110

Revenue allocation has been a matter of great contention from the earliest days of

colonization. Then, as now, disparities of natural resource wealth between Northern and

Southern Nigeria contributed in a fundamental way to the problem, even influencing the

Colonial Government's amalgamation of the two regions in 1914.

Beginning with the appointment of Sir Sydney Phillipson by colonial

authorities to investigate the allocation of powers among the various levels of

government, efforts to determine and apply the "derivation principle" and other elements

of revenue allocation have been as constant as they have been controversial. 111

Successive efforts include a long line of commissions and committees, as

well as legal measures and opinions:

• The Hicks-Phillipson Report; 135

• The Chick Report; 136

133 BRONWEN MANBY, HUMAN RIGHTS WATCH, THE PRICE OF OIL, CORPORA TE RESPONSIBILITY AND HUMAN RIGHTS: VIOLATIONS IN NIGERIA'S OIL PRODUCING COMMUNITIES (1999).

134 See Chibuike U. Uche & Ogbonnaya C. Uche, Oil and the Politics ofRevenue Allocation in Nigeria, (African Studies Centre Working Paper 54/2004), available at http://www.ascleiden.nl/pdf/workingpaper54.pdf (last visited Mar. 23, 2009). 84

• The Raisman Report (with its promotion of the Distributable Pool

Account); 137

• The Binns Report; 138

• The Constitution (Financial Provisions) Decree Number 15of1967;139

• The Dina Committee Report and Constitution Decree Number 9 of 1971; 140

• Constitution (Financial Provisions) Decree Number 6of1975; 141

• The Okigbo Report; 142

• Allocation of Revenue Act of 1981; 143

• Allocation of Revenue (Federation Account) Act Number 1of1982; 144

• Allocation of Revenue (Federation Account) Amendment Decree Number 36

of 1984· 145 '

135 HICKS· PHILLIPSON REPORT (1951 ).

136 CHICK REPORT (1953).

137 RAISMAN REPORT (1958). Notably, oil had been discovered and independence was imminent.

138 BINNS COMMISSION REPORT (1964).

139 Constitution (Financial Provisions) Decree No.15 (1967), § 1 (Nigeria).

140 DINA COMMITTEE REPORT (1969). Although the Dina Committee Report's recommendations were ultimately rejected, Constitution Decree Number 9of1971 had the effect of adopting the Report.

141 Constitution Decree No. 6 (1975) (Nigeria).

142 0KIGBO REPORT ( 1980).

143 Allocation of Revenue (Federation Accounts) Act (1981) (Nigeria) (subsequently declared null and void by the Supreme Court of Nigeria).

144 Allocation of Revenue (Federation Account) Act (1982) Cap. 16 (Nigeria). 85

• Constitution of the Federal Republic of Nigeria 1999, Sections 162(1), (2); 146

• The National Revenue Mobilization Allocation and Fiscal Commission

(NRMAFC); 147

• 1999 Constitution Review Committee Report; 148

• Attorney-General of the Federation v. Attorney-General of Abia State et al.,

No. SC28/2001. 149

The parade of studies, recommendations and governmental measures over the years, and the continuing subsequent dissatisfaction with each one speaks both to the crucial importance of revenue allocation and to its inextricable place in the tumultuous mix of politics, military intervention, ethnic rivalries and natural resource richness that have been the essential history of Nigeria. And until major reforms occur at a fundamental level, the debates, as well as the extreme and multi-dimensional adversities in key regions such as the core Niger Delta, will continue.

145 Allocation of Revenue (Amendment) Decree No. 36 (1984) §§ 1-6 (Nigeria).

146 CONSTITUTION,§§ 162(1)-(2) (1999) (Nigeria).

147 CONSTITUTION,§§ 31, 32 (1999) (Nigeria) ..

148 CONSTITUTION REVIEW COMMITTEE REPORT ( 1999).

149 Attorney-General ofthe Federation v. Attorney-General ofAhia State et al [2001] 11 N.W.L.R. 689 (Nigeria) Uudgment by the Supreme Court of Nigeria on the case brought by Nigeria's federal government against littoral states concerning allocation ofrevenues from "off-shore" petroleum resources). CHAPTER THREE

ENVIRONMENTAL AND OTHER IMPACTS FROM OIL DEVELOPMENT

Oil development in the Niger Delta has given rise to numerous adverse environmental, social, and economic impacts. Moreover, those impacts, all of which are severe, can be traced to various stages in the exploitation process. Surveys of inhabitants from the nine clans in the study area revealed a number of adverse impacts, including loss of biodiversity and natural resources damage, disease and other health problems, declining agricultural productivity, unemployment, crime, ethnic conflict, and general malaise. Oil and gas activities are the undeniable cause of all of these.

Relative to this point, increased production and other oil and gas activities, under extant policies regarding sustainable development in the region, would only worsen the impacts described above. Yet, according to most government officials surveyed

(under conditions of anonymity), present global dynamics, including increasing incidence of natural disasters, could lead to significantly increased demand and thus increased activities. That is, increased demand could motivate the federal government to press for vastly expanded activities in order to reap the benefits of resulting higher prices. 150 All these activities in turn lead to more intrusion on the environment and related concerns.

150 Nigeria's current oil and gas production, as of September 1, 2005, is 2.5 million (bpd), but it is generally believed that like most Organization of Petroleum Exporting Countries ("OPEC") members, the country may be producing well over its approved production quota. Evidence of the impending increase of production has been acknowledged by senior government ministers since 2001. See HUMAN RIGHTS WATCH supra note 133. 86 87

Acquisition of Indigenous Lands

The federal government's actual practices regarding the use and occupancy of lands in the Niger Delta provide the basis for the environmental degradation in the region by the multinational corporations. The Land Use Decree of

March 1978, later included into the Constitution of 1979, effectively nationalized and required a "Certificate of Occupancy" ("CO"), usually issued by a state government, as a pre-requisite possession and occupancy. 151 Although these various provisions did in fact provide for certain individual rights protections, the surveys and interviews performed in this dissertation document the wholesale abuse of these rights as to the minority ethnic peoples of the region.

The corporations, in collaboration with the Nigerian government (military or civilian), are known to start with the forceful, unilateral acquisition of indigenous people's lands for exploration, production, and exploitation of crude oil and natural gas, sometimes without notifying the actually impacted persons. There have been instances people were caught unaware and literally chased away from their own lands, with or without notice and adequate compensation. In most cases, the corporations argue that they are the legal owners of the lands in question, by virtue of a CO.

Exploration

After clearing the land and commencing the construction of necessary roadways, the multinationals move onto the land with the requisite equipment and tons of

151 CONSTITUTION, Art. 40(3) (1979) (Nigeria). 88

explosives. They soon begin to collect seismic data for preliminary geophysical studies.

To obtain seismic data, highly explosive charges are usually buried in holes, and then

detonated. 152 Seismic energy waves reflecting potential oil reserves and certain of their

relevant characteristics are then recorded. After the data collection is complete, the

corporate field officers depart, sometimes leaving the remains of explosives in their wake.

Some of these explosives are known to have maimed indigenous peoples who returned to

resume farming or fishing in the vicinity of seismic test sites.

Construction of Multinational Resources Oil and Gas Facilities

After a few years, if the geophysical test data indicate the presence of oil

and gas mineral deposits in commercial quantities, the corporations return without notice,

supported by the Nigerian military, to resume facility construction activities in

preparation for oil and gas exploitation. Thereafter the corporations, under military

protection, commence construction activities, a process which sometimes includes

dredging. The accompanying diversion of water from its natural courses causes negative environmental impacts such as flooding, silting, biodiversity loss, as well as other environmental problems. In all the sites that it occupies, Shell has created artificial canals to access oil wells. Another highly negative phenomenon noticed during the site visits was the practice of the corporations creating buffer zones in and around their onshore

152 A.A. Avbovbo, Address to the Nigerian National Workshop on Petroleum Law, Geophysical Structure ofthe Oil Habitat, (May 29-June 2, 1984) (presented at Nigerian National Workshop on Petroleum, held at the University of Lagos, Nigeria). 89

facilities. These buffer zones, usually ten times the portion of land actually utilized,

always require land-clearance activities. Given the very large number of facility sites in

the region, it is no surprise that land clearance destroys a large expanse of primary forest.

The corporations construct their onshore or offshore facility-flow stations,

tank farms, drills wells, and lay necessary pipelines to transport oil and gas stocks. This

equipment is badly worn, either due to depreciation or to sabotage, a fact that make them prone to spills. Further, the corporations do not carry out any meaningful cleanup or remediation. Little care is taken to contain accidental or deliberate toxic contamination through oil and gas reservoirs or storage. These failures have resulted in vast areas of devastated land, forests, rivers, streams, and lakes in the Niger Delta. 153 The seasonal

floods, in their most uncompromising nature, spread the pollutants to adjoining lands, rivers, and tributaries destroying the flora and fauna of the fragile ecosystem and disrupting the ecological balance of the region.

Production and Transport

The production process is the source of a considerable amount of environmental degradation. The corporations use highly toxic chemicals in the course of their exploitation activities, some of which escape and penetrate into nearby lands and streams. This has led to the destruction of critical habitat that has, from time immemorial, sustained indigenous peoples' livelihoods. One important example has been the low fish

153 NIGER DELTA ENVIRONMENTAL SURVEY, PHASE I REPORT 27 (1997). 90

catches common throughout the region. 154 In addition to the use of toxic chemicals, most

production facilities discharge water in association with oil production. The related

processes of separation and treatment always result in the spilling of part of the

contaminated water into the environment. These negative impacts are not in reality

addressed by governmental regulators. In the 2002 Directorate of Petroleum Research

("DPR") regulations, 155 permissible levels of contaminants in polluted water and most

toxic compounds are listed but there is no monitoring scheme to enforce these omnibus

standards. Many sites subjected to historical, long-term discharges of oil and gas

pollutants are in need of urgent restoration.

In addition to water, gas is also derived from the production process. In

gas production flaring is used to release excess gas and avoid over pressurization. In the

process, about thirty-five tons per year of carbon dioxide emissions are generated in

addition to acid rain. 156 Condensate gas is dumped and mixed in sludge that is eventually

pumped into the ground water, polluting a major source of potable water of the

indigenous people. Oil spills also occur in the process of transporting crude oil through

the main pipelines from the southern fields to the northern refineries at Kaduna or

southern refineries at Warri and Port Harcourt. These problems of environmental

pollution have been devastating to the Niger Delta. Further, the problems have gone on

for years. For example, some of the gas flares have been burning for upwards of forty

154 Interview with Etaye Konuboy Omgbe, the Amananaowei of Ojobo (the host community to Shell's Beneseide flow station, in his ancient fishing camp (Sept. 12, 2005). 155 DIRECTORATE OF PETROLEUM RESOURCES ("DPR"), REGULATIONS (2002). The DPR is a department of the Nigerian National Petroleum Corporation statutorily required to ensure that the petroleum industry operators do not degrade the environment in the course of their operations. 91 years continuously. 156 The same is true of the off-shore or deep-water operations. 157

Notably, the pollutants emitted are among the most toxic and dangerous-including oil pollution, radioactive substances, metals, organic chemicals and bacterial agents. And the impacted targets range from poisoning of the land, the air, the waters, and thus of the larger ecosystems of which they are a part. As discussed below, health, social, and economic injuries are inevitable.

Health Impacts

In this discussion of health impacts, it is critical to note at the outset the dearth of either modem or traditional health treatment resources. More particularly, flowing directly from the overall state of underdevelopment created by the politics of oil, the medical facilities in the region are few and far between. And those in actual operation are themselves poorly equipped and lack properly trained personnel. Additionally,

156 At Benisede-Ojobo Forcados, Nembe, Gbaran, Ogbotobo, Egbemangalabri, Ogulagha (lzon-borotu), Odimodi, Sokeboluo, Yokiri, North and South Bank, Egwa I and II to mention just a few. This grim situation is also true of Nigeria Agip Oil, Chevron and other on-shore facility operators. 157 The off-shore or deep-water operators include Exxon-Mobil, Chevron Texaco Overseas, Star Deep, Stat Oil, Fanfa Oil, Philip Oil and Conaco Oil. Their operations are conducted with the aid of military personnel dispatched from the Nigerian navy bases at Oron, Port Harcourt, Lagos, and Delta Naval Base at Warri-Ogbe-Ijoh. They use Nigeria's naval warships (some donated by the United States) in all their operations that harm indigenous peoples' attempts at livelihood including destruction of fishing nets, canoes, and community-owned boats. When people attempt to lodge complaints with oil company personnel, some have been shot and killed in oil rigs-platforms used as torture chambers. Recent victims of these offshore military torture activities are joyful Tombra and Ebi Obrien from Ezetu town of the Pennington federated communities (in the study area). The later had his leg amputated. They were all picked up forcibly inside their canoes in the high seas ofBayelsa State by naval personnel attached to Chevron Texaco multinational oil and gas corporation operating in offshore of close proximity to their towns (Ezetu, Ekeni or the Kefes communities). In July, 2005, military personnel attached to Shell's EIA Field Sea Eagle invaded Amatu, Agoro Orobiri, Bilabiri and Aleitoru Gbene killing over 112 people including women and children. This was after the same Military Task Force, led by General Zamani, raided Ogodobiri and killed twenty-seven people in 2004 on the purported orders of President Olusegun Obasanjo. 92

surveys conducted in seven of the nine minority indigenous clans revealed that alternative

medicine practitioners are limited considerably by the lack of basic herbs and plants

essential to their treatments. Ironically in the latter case, the very problem of degradation

has functioned as a cruel governor of access to health care solutions.

As to the human inhabitants of the region, diseases such as HIV I AIDS,

tuberculosis, cholera, polio, measles, birth deformities, yellow fever, typhoid fever,

elephantiasis, and cancer flourish. The presence of these maladies, or their

disproportionate presence as the case may be, is directly attributable to oil and gas

activities. In the case of HIV I AIDS, what would appear to be a questionable causal

linkage actually illustrates the complex and tragic matrix of ill-effects emanating from

these exploitation activities. Many local women and girls (whether or not married),

rendered poor, illiterate, and desperate at least in part by the exploitative oil activities,

have found themselves succumbing to the sexual advances of the corporations'

personnel. The result is that these female residents are not rendered sustainably better off

economically; rather, they are ultimately rejected, as diseased and disgraced as their native lands.

Doctor U.G. Oleru and Deji Femi-Pearse, two highly respected Nigerian medical researchers, have noted that the impact of oil-polluted water is not initially centered on humans but on aquatic ecosystems. 158 Nevertheless, the natural and fundamental ecological link of humans to the aquatic ecosystem compels humans to 93 share in the devastation inflicted upon the natural resources by oil pollution. The mangrove swamps found in the Niger Delta estuaries, for example, are particularly vulnerable to oil pollution. Pollution in these estuaries has serious consequences on the food supply (particularly the protein). 159

In these oil-producing communities, the infant mortality estimate ranges from 140 to 260 per 1000 births. Many more die at pre-school age from measles, bronchopneumonia gastroenteritis, and tuberculosis--diseases that form a vicious cycle when acting conjointly with protein deficiency. These indigenous communities, whose water supply has been contaminated by effluents from petroleum-based operations, have also developed gastrointestinal cancers. The situation is further aggravated by the fact that a majority of the population are non-literate, poverty-stricken, and most often unable to observe elementary personal hygiene habits. The totality of these circumstances has precipitated a genocidal descent into hell in the population, from which it is unknown as to whether these indigenous communities will survive.

Even the courts have acknowledged the negative consequences of oil exploration on indigenous Niger Delta communities. Commenting on the effects of multinational corporation's oil and gas activities, the trial judge in the case of Chief

Otuke v. Shell BP, 160 held that "Oil pollution constitutes a hazard." 161

158 Nigerian National Workshop on Petroleum Law, The impacts of Oil Polluted Water on the Human Organism, (May 29-June 2, 1984) (presented at Nigerian National Workshop on Petroleum, held at the University of Lagos, Nigeria).

159 Id.

16° ChiefOtuke et al. v. Shell BP, [1985] Suit No. BHC/83, F.H.C. 15 (Nigeria). 94

Social, Cultural, and Economic Impacts of Oil Activities

As discussed above, the environmental and health effects of oil and gas activities in the Niger Delta have been significant, widespread, and profound.

Unfortunately, these adverse environmental impacts have also created problematic dynamics at the human, social, and economic levels.

The health-related impacts of oil and gas exploitation on many indigenous minority women has been described above. Yet, in addition to spreading HIV/AIDS, the

"urbanized" corporate employees, as their security forces, generate social upheaval in these communities. So, for example, the activities giving rise at times to HIVI AIDS may be the result of rape, prostitution, or adultery, with all the accompanying individual and social degradation. Expanding the discussion to these workers' purchases of goods and services more generally, what might appear at first blush to be a welcomed economic enhancement is in reality another manifestation of the "curse" of oil. That is, these local economies are often inflated because the spending styles of the workers are often extravagant and boastful, artificially and injuriously inflating market prices for ordinary inhabitants.

Obviously, all these problems did not emanate solely from the presence of oil exploitation. But a "before-and-after" comparison, as well as actual and extensive observation, strongly suggests that the multinational presences is indeed the sole cause of

161 Id. 95 some of them (such as economic distortions) and is a major aggravating element for others. In this regard, other problems falling in this category include: a general sense of malaise and defeat; a rise in crime and insecurity; diminished economic opportunities owing to the degradation of land capacity for hunting, fishing and agricultural development; an influx of other ethnic groups by the corporations as preferred workers; and diminution of traditional values under the influence of the corporate and personal values of the persons brought into the region as a result of oil and gas activities.

The environmental, social and economic impacts described above are the fundamental problems that have resulted from oil and gas activities in the Niger Delta region. The next impacts-those on the nature of conflict and war-are treated separately below because of their special nature.

Conflict and Grass Roots Advocacy

Environmental degradation, politics, power, ethnic rivalries, and the struggle to control oil and gas resources in Nigeria lie at the root of the conflict in the

Niger Delta. Accordingly, understanding the relationships among these pertinent elements is crucial to any discussion and analysis of the situation in the region. Critical here is that governmental and corporate practices and policies can fairly be said to have caused (in most cases), and certainly to have failed to ameliorate meaningfully, the problems involved. The following discussion analyzes the conflict through the political evolution of two specific ethnic minority groups, the Ijaw and the Ogoni, with commentary on both problems and solutions. The discussion includes observations 96 regarding the failure to incorporate customary and traditional values and considerations, including conflict resolution systems, into the existing dilemma in the Niger Delta.

The ljaw

As observed earlier in this dissertation, oil was first discovered in Oloibiri

(ljaw land) and about fifty-five percent of current Nigerian oil and gas production derives from this territory. Nevertheless, inhabitants of the region suffer daily and inexorably from the deleterious effects of oil exploitation, environmental degradation and loss of biodiversity stemming from oil exploration and production by Shell BP, Chevron, Exxon

Mobil, Agip Oil and other companies. Because of these problems, to the ljaws, the idea of "Nigeria" remains a fraudulent creature of British imperialist expedition that has been perpetuated by multinationals and the Nigerian federal government. They are firm in their belief that:

[M]odem nationhood is a voluntary acceptance after political negotiations by sovereign ethnic nationalities. To that extent, for there to be a Nigeria as a political entity, it has to be an amalgam of sovereign ethnic nationalities and not that of failed institutions, military cohorts, or domination seeking majority ethnic or tribal political egoist parading as national leaders. 162

So it follows, in the view of these indigenous peoples, that only the true representatives of the ethnic nationalities, of the ljaw, Ogoni, Nupe, Isoko, Urhobo, lbibios, Ekpeyes, lkweres, Ogbas, Tiv, Yoruba, Ibo, Hausa, Fulani, and so on can validly

162 Interview with Pereke Uzoh (Alias Orukrigbe), a Nigerian Biafra Civil War veteran on Wilberforce Island, Bayelsa State, Nigeria (Sept. 8, 2005). 97 resolve, enact, and voluntarily proclaim a political union with a voluntary constitution for and on their behalf. This perception of premeditated injustice on a grand scale at the hands of the multinational oil and gas corporations and the government led to the declaration of the Niger Delta Republic by the Ijaw leader Isaac Jasper Adaka Boro in

1967. Boro, a former chemistry student and student leader at the University of Nigeria

Nsukka (lgboland) and a former policeman (Yorubaland), was acutely aware of his and his people's status of second class citizenship. One observer, in tracing the roots of efforts at change over the years by others leading up to Boro' s time, noted that:

The man Adaka Bora as I have come to understand was deeply dissatisfied with the state of things in the Niger Delta. He could only see neglect all around him. In the environment itself, he saw danger. He cried out, but no one would listen. 163

The criminal conviction of Mr. Boro, as well as the Nigerian Supreme Court opinion affirming it, reveal much about the resulting problems of civil strife and their roots. The facts accepted by the Supreme Court of Nigeria presided over by Ademola CJN are as follows:

Isaac Jasper Adaka Boro, the revolutionary leader of the Ijaw indigenous people of the Niger Delta in company with Nottingham Dick, Bennet Mendi, Samuel, Timipre Owonaru and other members of the Niger Delta Volunteer Service (later force) blew open the armory and removed a quantity of rifles and ammunition. They were also alleged to have kidnapped the police inspector in charge of the area and two multinational oil and gas corporation's workers (contract employees of Shell BP). They

163 Isaac Jasper Adaka Boro v. Nigeria, (l 966) I A.N.L.R. 263 (Nigeria). Note that all the presiding Judges of the Supreme Court of Nigeria were from the majority ethic groups (House Fulani, Yoruba, and Ibo). All interviewees who referred to the Niger Delta Ijaw struggle expressed a resilient conviction that the outcome of the trial was predetermined and ethnically influenced. They believe that no core Niger Delta Ijaw or Ogoni person can get a fair and unbiased trial from the Nigerian State. 98

proceeded by motorboat to Oloibiri, where they blew up the Shell BP oil pipeline, released the three Shell BP workers a few days later, and blew up another major Shell BP Trunk "A" pipeline and pump station at Odi. The Nigerian police and the Shell BP special police engaged themBin a gun battle after which the police expended 450 rounds of ammunition with no loss of life on either side. The police found erected on the Mbiama side of the river a signboard bearing the words "Welcome to the Niger Delta's Peoples Republic." They also found typewritten documents headed "The Niger Delta Peoples Republic Declaration of Independence." They were also accused of intimidating the Head of the Federal Military Government of Nigeria and by violent means carrying out such agreement throughout the Niger Delta Area to wit Yenagoa, Mbiama, Odi, Odoni, Oloibiri, Abobiri and Nembe [all Niger Delta Ijaw Towns within the study area]. 164

The Supreme Court of Nigeria, presided over by justices from the majority ethnic groups, found the defendants guilty of treasonable felony and condemned them to death. 165 Shortly thereafter, the Biafran civil war broke out and Nigeria had no military personnel with full knowledge of the Niger Delta area that the secessionists had taken over. Reportedly, the leadership of Nigeria's military entered into secret discussions with Boro at the Kirikiri Lagos Prison. According to some, Boro was pardoned by Lt. Col. Yakubu Gowon's government upon the condition that he accept a commission in the Army to help liberate southern territories under Biafran control. 166

Boro accepted and recruited members of his Niger Delta Volunteer Forces. 167 Although

164 GANI FAWEHINMI, THE STRUGGLE FOR GENUINE DEMOCRACY IN NIGERIA: STATE OF THE NATION AND THE DANGERS AHEAD, VOL. II 151 (1999).

165 Isaac Jasper Adaka Boro et al. v. Nigeria, (1966) 1 A.N.L.R. 263 (Nigeria).

166 Uzoh supra note 162.

167 Most of the new recruits were believers of the supreme Egbesu Egbesu, also known as Agadagba, Suokro, or Ezon-a legendary supernatural power believed to have been revealed to one of 99

Boro was very successful in his participation in the 3rd Marine Commando Division

under Col. Benjamin Adekunle, many believe that he was killed upon orders of the

Nigerian military leadership in part because of that very success. It is further believed

that Colonel-later General-Obasanjo was in accord with the plot.

Although Isaac Adaka Boro was killed, the movement of which he is a

part continues, in no small part because of the continuation of the dynamics that gave rise

to that movement. Further, the commentary about the circumstances of his death has not

abated, and this commentary itself appears to be one mechanism of participation in the

movement. 168

In 1990, the Ogoni took stock of their position and found that in spite of

the plentiful oil and gas reserves on their land, their condition was deplorable. They

were extremely poor, had no social amenities, unemployment was over seventy percent,

and they were powerless to do anything about these problems. Also, the environment

had been devastated by four decades of uncontrolled oil exploitation. The chiefs and

leaders of Ogoni, therefore, adopted an Ogoni Bill of Rights ("OBR") in which they

demanded the right to self-determination as a distinct people in the Nigerian federation,

adequate representation in all Nigerian national institutions, the right to use a fair

proportion of the oil and gas (environmental and economic) resources for their own development, and the right to control and preserve the environment.

the lost tribes of Israel. It is also believed among the Ijaws that all descendants of Ezon are entitled to this protection in time of need.

168 Gani Fawehinmi, The Murder ofDikibo: Another Lesson for Niger Delta, Mar. 1, 2004, http://nigeriaworld.com/feature/publication/fawehinmi/030104.htrnl (last visited Mar. 12, 2009). 100

Ken Saro-Wiwa, leader of the Ogoni people's struggle through the

Movement for the Survival of the Ogoni People ("MOSOP"), adopted non-violence as

his modus operandi. 169 Many believe that Shell and the government of Nigeria leveled

false accusations of murder and treason against him and eight others. They were tried in

a military tribunal presided over by members of the majority ethnic groups of Nigeria

and were sentenced to death by hanging. They were hanged on November 10, 1995.

Responding to his conviction, Saro-Wiwa said:

[I]n my innocence of the false charges I face here, in my utter conviction, I call upon the Ogoni people, the peoples of the Niger Delta, and the oppressed ethnic minorities of Nigeria to stand up now and fight fearlessly and peacefully for their rights. 170 Commenting on the situation, Chief Gani Fawehimi noted that the facts of

these two grass roots struggles (Ijaw and Ogoni) clearly show the grievances of the

indigenous people of the Niger Delta and the desperation caused their frustration. 171 Most

interviewees express the view that although Isaac Jasper Adaka Boro and Ken Saro-

Wiwa are dead, the circumstances surrounding their death continue to encourage the

legacy of martyrdom in youths. 172

169 FAWEHINMI, supra note 164 at 159-160. 170 Id. at 16.

171 Id. Fawehinmi further maintained that "when oil was first struck in 1956 at Oloibori (Ijaw area), the people thought that such discovery would bring joy and improved quality of life to them. The opposite is the case. Forty-nine years of hardship, agonizing pain, debilitating anger, extreme poverty, poisoned rivers, destroyed primary occupations, devastated environment, no clean pipe-borne water, no electricity, no qualitative and functional education, [and] no access to primary healthcare [have resulted]."

172 On September 6, 2005, the Nigerian Government arrested Alhaji Asari Dokubo and remanded him to prison on trumped up charges of treason at the request of the multinational oil and gas corporation, particularly Chevron and Shell Petroleum Development Company. Asari Dokubo is a known 101

Comments on Grass Root Advocacy Responses

While no well-researched studies of the impact of Niger Delta grass roots

advocacy exists, most persons interviewed for this dissertation believes that the progress

of these groups was impeded by such factors as lack of support from the international

community, poverty, illiteracy, and the non-violent approaches ofBoro and Saro-Wiwa.

It is useful, however, to make several observations regarding these advocacy efforts, with

a view towards incorporating these groups as stakeholders and participants in my

recommendations for reform at the end of this dissertation.

On the positive side, it can be said that these grass roots groups have

sensitized and mobilized the Niger Delta people and others throughout the world, to the

point of escalating the demand for more responsive and responsible action by the

Nigerian government and the multinational corporations. Further, the advocacy has

elicited calls for promotion of conflict resolution, peace building, and truly democratic

governance in Nigeria. On the other hand, there has been a long history of failure, non-

action, and dubious action on the subject of reform and improvement of policies affecting

the region. This includes the ineffectual tenures of the Niger Delta Development

Commission and the Nigerian Human Rights Commission, as attested to by a

government report. 173 Accordingly, the region is beset with continued environmental,

and popular environmental campaigner, like Jasper Adaka Boro and Ken Saro-Wiwa and others who died or were killed by the Nigerian State. It is generally believed by most interviewees that after his arrest, his fate was already determined by the pathological hatred the majority ethnic groups have against the core Niger Delta, and the desire to suppress their agitation for environmental resources control.

173 A.O. 0GOMUDIA ET AL., REPORT OF THE SPECIAL SECURITY COMMITTEE ON OIL PRODUCING AREAS (2001). This report found that: 102 social, and economic problems, including considerable violence perpetrated not only against the multinationals and the federal government, but also by various ethnic commumties. . agamst . eac h ot her. 174

Successive governments have tried to provide some succour to the Niger Delta through the establishment of the Niger Delta Development Board, OMPADEC and now NDDC. However, for many well known reasons, establishment of these institutions has failed to meaningfully address the problem to the extent that the NDDC is seen by many people in the oil producing areas as likely to suffer the fate of its predecessors. Enduring peace any where [sic], particularly in the oil producing areas, can not [sic] be achieved by militarisation or the security approach. While one cannot deny the obvious criminal elements, which have to be firmly dealt with by the application of the law, the Committee is convinced that problems of the oil producing areas can be best [solved] through two broad approaches, which must be implemented simultaneously. The first approach is the development of infrastructure, such as roads, housing, electricity, water, employment generation and economic empowerment of the people of the area. This approach, once initiated and recognized by all the stakeholders, would make it easy for the implementation of the second one, which is effective enforcement of law and order. Id.

The Special Security Committee on Oil Producing Areas was set up by the Federal Government to address the prevailing situation in the oil producing areas which have, in recent past, witnessed unprecedented vandalization of oil pipelines, disruptions, kidnapping, extortion, and a general state of insecurity especially. The Committee recommends amongst others that the National Boundary Commission should embark upon and complete boundary demarcation to avoid conflicts in the Niger Delta. 174 See generally UNITED NATIONS DEVELOPMENT PROGRAMME, NIGER DELTA HUMAN DEVELOPMENT REPORT 111-28 (2006); HUMAN RIGHTS WATCH, THE PRICE OF OIL 112-44 (1999). PART TWO

THE ENVIRONMENTAL LEGAL FRAMEWORK IN NIGERIA

CHAPTER FOUR

INTRODUCTION TO ENVIRONMENTAL LAW IN NIGERIA

A. Sources of Environmental Law in Nigeria

Because of its complex history and its diverse ethnic and cultural

communities, Nigeria is a country of similarly complex and diverse legal traditions.

Nigerian environmental law, in turn, is grounded in those same traditions, and three

fundamental regimes of law contribute significantly to it: customary law, English

Common law, and Sharia.

Although these fundamental sources of Nigerian law derive from different

social, cultural, and historical milieu, and thus have their own particular legal norms and

methodologies, their parallel analysis is crucial. This holisitc analysis will help in

understanding the shortcomings of current Nigerian environmental law in terms of power,

voice, and authority as regards the Niger Delta people.

As a former British colony, Nigeria retains many vestiges of Anglo-Saxon

law within its legal system. In fact, the British contribution to the Nigerian legal system

tends to be significant and it will thus often provide the basis for Nigerian legislation and judicial decisionmaking. On the other hand, other sources of Nigerian law may be less

103 104 influential, with their presentation occurring (if at all) in textbooks and other secondary sources. Justice Ebi Tobi agrees with this view, opining that laws made by the Nigeria legislature and by the courts are viewed seriously because they are a primary source, while those found in textbooks will not be viewed seriously because their authors are expressing merely a professional opinion about the law. 175

Thus, the various sources of Nigerian law are not equal, with the British colonial influence reaching beyond its grave to shape the political, economic, social, and environmental realities in present-day Nigeria. And a simple, superficial analysis of the most and least influential bodies of law based on the traditional dichotomy of primary- versus-secondary authority misses the more subtle but preponderant roots of Nigerian law.

The topic of Nigerian environmental law will be discussed under the following headings: (i) Customary Environmental Law; (ii) Environmental Legislation;

(iii) Nigerian Judicial Decisions on the Environment; (iv) the Received English

Environmental Law; (v) International Treaties, Conventions and Protocols on

Environmental Law; and (vi) Writings of Environmental Jurist and Publicists.

B. Nigerian Customary Environmental Law

The Niger Delta people, particularly the Ijaw, are highly dependent on the environment, but their relationship with the environment has often not been pleasant.

175 EBIOWEI TOBI, UNDERSTANDING LEGAL METHOD AND LEGAL THEORY 117 (Gittelle Nigeria Ltd. 2002). 105

They have been victimized by disease and human domination, which over the years have robbed them of part of their creative energy. They have also been plagued by pests, animals, and natural disasters, which have obliged them to struggle for survival. In all these encounters, they have invented, developed, and fashioned tools to counter these various challenges. Expectedly, they have also created distinct and unwritten customary usages.

It is these sets of Ijaw native laws and customs on the environment of the various clans, communities, and villages that is referred here to as customary environmental law. To this extent the phrase "Ijaw customary environmental law" is used to refer to all customary rules of environmental or natural resources management in the whole of the study area (the core Niger Delta). There exist significant differences in the behavioral rules as regards the nature and severity of punishment of those who violate the customary environmental law. There are about forty sub-clans in the Ijaw country today. 176 Thus there exist in all these sub-clans and villages numerous customary environmental laws.

In all the clans and sub-clan locations, including the numerous villages visited in the course of this research, almost all customs have their unique origins and historical justification. Also noticeable is the reality that customary environmental law is not static, and thus it changes with time and events. The custodians of customary

176 See CONSTITUTION OF THE lJAWNATIONAL CONGRESS 6 (1993). The Ijaw National Congress ("INC") is a social cultural organization of the Ijaw ethnic nationality in Nigeria and diaspora. It has a well-established formal leadership structure, and it seeks to organize and improve the well-being of its members. 106 environmental law are the traditional rulers, chief priests, the eldest people, and the traditional orators. These people have special knowledge of the customary environmental laws of the Ijaw country, including all aspects of oral tradition preserved through folklore, songs, dance patterns, cultural performances, clan or village assembly meetings, special art forms, masquerade festivals, and the like.

In all the clans visited, there were marked similarities on key customary environmental rules. One example is Si-otuoeye, or eco- taxation. The practice is that all harvesters of natural or environmental resources contribute a given percentage or one­ tenth of their proceeds to the traditional ruler who in tum spends it on the restoration of the environment. Another example is Be kun de be-were, which requires all Ijaw people and their visitors to only exploit some environmental resources at any given time or take some and leave the rest to reproduce for "our better tomorrow." This customary rule is similar to the modem environmental law principle of sustainable development.

Amongst the fishermen and hunters, prey that is sleeping or is pregnant need not be hunted or killed. The rule restricting the harvest or communal exploitation of environmental or natural resources was predicated on the ability of the species to reproduce. Accordingly, fishing and hunting or harvesting of species that are almost extinct is prohibited. All environmental resources (forests, rivers, earth, wildlife, and the like) are governed by the customary environmental law. 107

Case Adjudication and the Creation of Customary Environmental Law

At Tuomo and Oporomor Clans, I witnessed proceedings in which a

traditional clan king adjudicated a customary environmental crime involving fishing in

lakes and canals during the periods set aside by the clan and village for the fish stocks

and marine mammals to rejuvenate. In this unique trial, the accused persons voluntarily

and truthfully confessed to the charges and the various family heads pleaded with the

king, who after a dispassionate analysis of the circumstances announced the verdict.

In the Tuomo Clan Ebiere Meibi case No. 7, the accused was a middle-

aged married woman from Oyiakiri Clan Aleibiri accused of fishing in Ebiribo Clan lake

during the rejuvenation period of five years. She pleaded ignorance and the fact that she

has never been in the forest except on that fateful day. She also alluded to the fact that

she reported herself upon having been informed by her mother-in-law (Amaebimo-ere

Meibi) that she had violated the customary environmental law of Tuomo Clan by fishing

in an ancestral lake during the traditional rejuvenation period.

The traditional ruler and high priest, HRM Pere Esuku IV (my older

cousin), took my own plea for the effective public education on the customary

environmental law into account and pronounced that Ebiere Meibi was forgiven and

ordered to present herself for purification in the shrine of "Ebiriba Bou." It is important to note that this occasion was used to create yet another Ijaw customary environmental rule as practiced in Tuomo Clan and its town: that all newly married women coming to 108 settle in and around any traditional forest must be properly educated by her husband before allowed to fend for herself in the clan forest.

These cases provide an opportunity to describe the way and manner by which customary environmental law is created. It is upon the active pronouncement of the Amanamaowei, Pere or eldest person, as the case may be, that provides the basis of authority for the creation of a customary environmental law. But not all customary practice eventually develops to become customary law. This is because among the !jaws of the core Niger Delta, for a customary practice to be law, it must be capable of enforcement and sanction no matter what may be the discretionary character of its application.

From the analysis of established local customary environmental law, it is obvious that a major attribute of customary environmental law is that it is unwritten, flexible, and dynamic, and must be capable of enforcement by the traditional leaders and other members of the social hierarchy of the people. That is the Pere, or Traditional King who performs the judicial function, the advocates who are members of the clan, family, or village known to be of good behavior that command respect under the traditional hierarchy. Also included are the youth who act as law enforcement officers, including the "ekobos" who are specialized law enforcement officers. 109

Customary Environmental Law and Natural Resource Management

Customary environmental law has provided fundamental rules for protection for both the peoples and the natural resources of the Niger Delta, thus promoting historically (before the advent of oil and gas exploitation) a functioning, sustainable ecosystem. The discussion below examines the interaction of customary legal rules, natural resource management, and promotion of overall wellbeing for that region's residents.

Forestry

Before oil and gas production began in the Niger Delta, the use of the forest as a natural defensive mechanism was a very common practice. Specifically, traditional rulers would require the conservation and maintenance of certain designated forests, not only for the usual sustainability objectives, but also as an obstruction in order to protect the people from external violent attacks. In pursuit of this objective, communal harvests of those designated forests were restricted to only traditional or native doctors.

Additionally, these forests contained sandy river channel flows-plane lakes with mangrove trees growing in between inter-tidal lands with unique flora and fauna, and diverse species of mammals (including the pygmy hippopotamus which is currently facing extinction because of oil and gas exploration). Conscious of the worth of these natural riches, populations of endangered species (such as the red columbus 110 monkey, black-fronted duiker, elephant, lion and black tree squirrel) were required to be preserved by the customary environmental law. 177

Customary environmental law prohibited trade in birds such as the egret, swallow, owl, vampire-bat, kite, parrot, eagle and others. Their rare features such as colorful feathers were needed as part of the regular costumes used in the traditional regalia of the Pere. Other birds were believed to possess supernatural powers and could forewarn about events and evil awaiting the people. These forewarnings included imminent environmental catastrophes. Of course, the practical effect of denominating these birds as sacred was the preservation of the birds and their habitat.

Reptiles and Amphibians

Certain animals, such as monitors (iguanas), dwarf crocodiles, royal pythons and turtles (ogbokro-owei), are legally prohibited species under customary environmental law in almost all clans. These are symbolic creatures in various clan's spiritual hierarchy. Today, however, crocodiles and young monitors are the subject of trade by non-indigenous people (usually oil and gas industry workers). These practices run contrary to all notions of respect for these indigenous people's traditional belief

177 This was because most of the wildlife, plants, mammals and other natural resources were regarded as spiritual channels of communication with ancestors and were held to be sacred. 111 system. Significantly, from an environmental protection standpoint, such practices violate both traditional and modern norms of biodiversity and ecosystem management.

Invertebrate Terrestrial Fauna

These groups include many insect populations and other fauna, such as termites, ants, butterflies, scale insects, wasps, beetles, flies, fleas, wood lice, spiders, mites, millipedes, worms, and mollusks. All of these are regarded as distinct life forms that complement human existence, with links to the ancestors. Under customary environmental law they must not be killed if they are found in the specially designated forests. As with the rules relative to other resources, the effect of these rules is the preservation of these species.

Among the ljaws, be kun de bewere (harvest some resources and leave others to rejuvenate), the customary law equivalent of sustainable development, encourages a certain degree of natural resources management. The history of these legal rules has been preserved over the years by traditional high priests and "soothsayers" or

"tellers." Their accounts, as reflected in this thesis, constitute oral histories that inform the people about !jaw customary environmental law. 178

178 Ebe Bou (Clan Forests): These forests are usually reserved for customary practices in relation to the ancestors. In all the clans visited, these categories of forest are the only places believed to have the remaining colonies or populations of wildlife such as elephants, gorillas, buffalos, lions, antelopes, and the like, and hunting is prohibited in these forests. It is the customary environmental law that preserved the biodiversity and ecosystem in the Niger Delta before the advent of oil and gas in Nigeria. Today, by all accounts the Niger Delta environment is threatened by oil and gas exploitation. Ama Bou (Town or Village Forests): These comprise forests that are also used for minor sacrifices. These forests are the primary sources of firewood collection, but they also have portions devoted 112

To ensure the sustainable management of the water of the Niger Delta, ljaw customary law bestows certain rights and privileges, and imposes certain prohibitions, on the use of running water. Many clan rituals involve the use of water.

Further, clear evidence from the responses of interviewees show that water is seen as sacred and is not to be abused. By custom and by law, it has legitimate uses, such as for worship, fishing, bathing, and the like. Therefore, customary law grants limited water rights to tenants, violations of which are deemed to be serious. Finally, because customary environmental law views water as part of creation, it is not capable of alienation to strangers. Hence, no individual can have private rights in water for domestic or other use. to deities, which are worshipped in the forest. In such worship sites it is most often believed that the entry of women, particularly during their menstrual period, defiles the forest, portending dire consequences. Oru Bou (Divine Forest): These categories of forest are sacred, and general human activity exploration is prohibited in and around forests such as: Opuogbo-bou, abayasa-bou, alaipe-bou, okri-gbolu-bou, odau-bou. In some of these divine forests there are also some divine lakes. Where such lakes exist, the forest is usually appeased before approved exploitation, and the harvest is limited only to the lake and the immediate surrounding area. It is also required practice that the smallest catches are returned into lake with libations and incantations of the High Priest. Sei Bou (Evil Forest): The "evil forest" is usually under customary law the final resting place of people who died violent deaths or other forms of untimely death. The evil forest is associated with most clans' unpleasant history, because categorization of events as evil makes people refrain from the exploration of this forest. So over the years these forests were literally preserved in terms of their biodiversity. But in the clan regions where oil and gas exploitation is currently ongoing, these and other sacred forests covered by customary environmental law are the most impacted by the intrusive acts of the oil and gas industry. Par Bou (Ordinary Forest): Basically the ordinary forest is the forest in which the entire basic natural resource requirements of life are obtained. It is usually not restricted as to use and peculiar harvest under customary environmental law. This is usually a portion of the forest in close proximity to the existing settlements. 113

The central reasoning of these rules is well reflected in the hallmark case

of Amachre v. Kalio. 179 Although the case is unreported, it is nonetheless frequently

cited as a testament to the customary environmental law principle that the communal

right to water for domestic use must be reasonable. In this case, the plaintiff, an Okrika

Ijaw leader, signed an agreement with the defendants allowing them to pass through the

main river and set up fishing settlements in the creeks. The defendants started erecting

huts and other human settlements along the bank of the main river. The plaintiff sought

an injunction to restrain the defendants from appropriating the entire river. The

injunction was granted. The court held that the defendants were not reasonable in their

use of the limited water rights granted in the agreement.

Fishing

Some species of fish are reserved for specific clan rituals and ceremonies.

Therefore, in lakes, ponds, and rivers where such species of fish are found, fishing is

either prohibited or allowed in limited amounts during certain seasons of the year. In

some instances non-natives, females, or children are prohibited from eating certain

species. These rules are borne out of customs that date from time immemorial.

In the Ijaw belief system, violations of these rules run the risk of angering the ancestors, entailing adverse consequences such as very low harvests. As with other

similar rules, one principal result is the preservation and management of the selected fish

179 Amachre v. Kalio, [1957] (Unreported) Native Court (Nigeria). 114

species. Sadly, today, the lakes, ponds, rivers and other waters covered by customary

environmental law are now decimated by the intrusive activities of the multinational oil

and gas corporations. Oil pollution, noise from helicopters, engines, boats, and

explosives, pipelines construction activities, and other environmental harms, significantly

alter the physical, social, and cultural circumstances of the peoples in the Niger Delta.

It is important to note that the sustainability-driven customary

environmental law of the Niger Delta indigenous ethnic minorities (ljaw and Ogoni) is

not accommodated under Nigeria's current socialist regime based on absolute state

ownership of oil and gas resources. This is because the high courts established by the

Constitution of Nigeria (Supreme Court, Court of Appeal, Federal high courts, and State

high courts) apply law and equity principles other than customary environmental law. 180

Even the inferior customary courts established to apply customary law do not have jurisdictional competence over oil and gas, mines, minerals and natural gas by virtue of

section 251 of the Constitution of Nigeria. Accordingly, those courts have no

jurisdiction over the oil and gas multinational corporations or any federal agency,

including the Nigeria National Petroleum Corporation.

Where customary environmental law is applied by the high courts, it

carries an inferior status in relation to other constitutionally sanctioned regimes of law.

Specifically, it is applied as an alleged set of facts according to evidence rules and not as

given law. The section 14(1) of the Evidence Act provides:

ISO CONSTITUTION, Art. 6 (1999) (Nigeria). 115

A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed Judicially or can be proved to exist by evidence; the burden of provinf: a custom shall lie upon the person alleging its existence. 81

Similarly, in Olabanji v. Omokewu, 182 the court held that a customary practice is to be proved by the party seeking to have it applied. In Barge v. Gunduma, 183 the legal principle that custom must be pleaded by the party that asserts it was enunciated.

In all these cases the courts appear to misconstrue the Evidence Act prov1s10n, which contains two express conditions for acceptance of a custom.

Specifically, the caselaw appears to have construed the provision to mean that customs may be accepted by a court as facts only where numerous court decisions have accepted them (the "notoriety" test). That is, the courts tend to give emphasis to the number of court decisions that uphold a particular custom in determining whether it should be binding.

In Olabanji v. Omokewe, 184 Justice Wali of the Supreme Court held that a custom can only be judicially noticed after it had been considered, accepted, and applied in many decisions. This position was followed and reaffirmed by the Supreme Court in

181 Evidence Act, (2004) Cap. 23, § 14 (Nigeria).

182 Olabanji v. Omokewu, [1992] 6 N.W.L.R. 671, 687 (Nigeria).

183 Barje v. Gunduma, [2001] 13 N.W.L.R. 673, 681 (Nigeria).

184 Romaine v. Romaine, [1992] 4 N.WL.R. 650, 669 (Nigeria). 116

Romaine v. Romaine. 185 In this case, Nnaemeka Agu, Justice of the Supreme Court, held that:

The case of Cole v. P.A. Akinyele186 is sometimes referred to as authority that a single binding decision is enough. In my view, this is no authority for such a proposition; it was not over-ruled as bad law nor distinguished.

It must be noted with some concern that the learned Justice of the

Supreme Court was in this case re-affirming his earlier decision in Nzekwu v. Nzekwu, 187 where he held that a single authority was sufficient to support recognition of a custom.

Interestingly, His Lordship considered the unsupportable decision of Taylor, F.J., in

Liadi Giwa v. Bisiriyi Erinmilokun 188 where the court held that custom is only admissible if it is of notoriety and has been frequently acted upon. Commenting on this terrible oversight, Akinola Aguda (Nigeria's foremost learned jurist and author) noted that:

The learned federal Justice did not appear to have adverted his mind to the provisions of the evidence act as contained in section 14(2), to that extent, the decision appears to have been reached per incurum. It is bad enough that our customary law has to be proved as a fact and not law in our own country nearly 45 years after independence from British rule. It will be worse to say that after a customary law has been pleaded and canvassed up to the Supreme Court, it still cannot even be judicially notice. d . 189

185 Id.

186 Cole v. P. V.Akinyele, [1960] S.C.N.L.R. 192 (Nigeria).

187 Nzekwu v. Nzekwu, [1998] 2 N.W.L.R. 343, 427-8 (Nigeria).

188 Liadi Giwa v. Bisiriyi Erinmilokun, [1961] I N.L.R. 294, 296 (Nigeria).

189 AKINOLA AGUDA, LAW AND PRACTICE RELATING TO EVIDENCE IN NIGERIA ~ 3-39 (1980). 117

Despite the sustainability of some of these customary environmental laws in the Niger Delta, there exist several obstacles for its recognition in Nigeria. In fact section 14(3) of the Evidence Act provides that:

Where a custom cannot be established as one judicially noticed it may be established and adopted as part of law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them: Provided that in case of any custom relied upon in any judicial proceeding it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience. 190

This provision is also referred to as the "repugnancy" test in Nigerian legal parlance. In

Akpalakpa v. Jgbaibo, 191 the court interpreting this section held that a custom which did not allow the economic, social, and political growth of a people was contrary to the rule of natural justice, equity, and good conscience.

The justification for the exclusion or severe limitation of customary law in

Nigerian law, generally speaking, reflects the thinking that that body of law may at times be inconsistent with the values and necessities of a modem Nigeria. Yet a major, and ironic, result of this attitude has been its devastating effects on the environment and the people of the Niger Delta. This thesis argues that law reform in Nigeria should not result

190 Evidence Act§ 14 (Nigeria).

191 Akpalakpa v. Jgbaibo, [1992] 8 N.W.L.R. 468, 533, 550, 552 SC (Nigeria). See also ]EDZEJ GEORG FRYNAS, OIL IN NIGERIA: COMMUNITY RIGHTS AND CORPORATE DOMINANCE IN CONFLICT 63-68 (2000). 118 in the total evisceration of customary environmental law. On the contrary, many of the values and concepts of this body of law reflect wise, timeless, and universal notions of respect for human dignity and for sustainable development.

C. Environmental Legislation

The Nigerian constitution created a federation made up of the federal government, 36 constituent state governments and 768 local government council areas. 192

The legislative powers are by constitutional direction shared between the federal government, the state governments, and local governments. At the federal level, legislation is passed by the bicameral National Assembly comprised of the upper chamber (Senate) and the lower chamber (House of Representatives). The states and local governments have unicameral legislatures.

The legislature is discouraged from passing retroactive legislation. 193 All legislation must observe due process and conform otherwise with constitutional requisites. Any legislation that is inconsistent with the constitution is null and void to the extent of its inconsistency. 194 The constitution contemplated a clear-cut dichotomy on the exercise of legislative power through the following provisions. First is the Exclusive

Legislative list, which lists items that may only be legislated upon by the federal

192 CONSTITUTION, Art. 2-6 (1999) (Nigeria).

193 CONSTITUTION, Art. 36(8), 36(12) (1999) (Nigeria).

194 CONSTITUTION, Art. 1(3) (1999) (Nigeria). 119 legislature. 195 Second is the Concurrent Legislative List, which lists items that can be legislated upon by both the federal and state legislatures. 196 Finally, there is the Residual

Legislative list. Though this is not explicitly contained in the constitution, it is generally deemed that any item not contained in the Exclusive or Concurrent lists was intended to be exclusively legislated upon by the state legislature.

Increasingly, the legislature is now faced with highly specialized subjects.

This reality has led to recent trends in legislation which include the establishment of specialized agencies such as the Federal Environmental Protection Agency and the

Central Bank of Nigeria among others. In these enactments, the legislature sometimes states broad aims or goals and will usually empower the specialized agency to give effect to the legislative intent or directive through administrative or subsidiary regulations.

These regulations have virtually the same force and effect as statutes. Also, like the statutes establishing these agencies, the regulations must not violate the constitution.

The agency must not adopt any subsidiary legislation not approved or authorized by the legislature. 197

There are several laws in the Nigerian statute books that deal with the environment and are so captioned or tittled. 198 Other laws, referred to as sectoral

195 CONSTITUTION, 2d Sched., pt. 1, § 4 (1999) (Nigeria).

196 CONSTITUTION, 2d Sched., pt. 2, § 4 (1999) (Nigeria).

197 CONSTITUTION, Art. 2-6 (1999) (Nigeria).

198 These various environmental laws include Federal Environmental Protection Agency ("FEPA") regulations and sectorial laws such as the Oil and Gas Sector-Minerals Act, Oil 120 legislation, deal with aspects of the environment as well. In this dissertation, all laws that deal directly or indirectly with environmental protection are treated as part of the entire body of environmental legislation and, accordingly, are generically referred to as a source of Nigerian environmental law.

D. Nigerian Judicial Decisions on Environment

As with other judicial systems based in, or influenced by, English common law, the Nigerian judicial system is a hierarchical system in which stare decisis, or the law of precedent, is a central feature. As such, the adversarial system typically addresses specific, concrete controversies between parties about an alleged violation of some legal right or requirement. In keeping with this tradition, the Nigerian courts provide interpretations of the national constitution and legislation or regulations enacted pursuant thereto, wherein the courts' interpretive discretion is broader when there is less guidance in the relevant law.

One of the issues explored in this thesis is the role of politics, ethnicity, and culture on the judicial decisionmaking process. That is, whatever the written, structural, and received view of the judicial process may be, in reality, some judicial decision may be better understood by viewing them in terms of the possibility that some judges may yield to pressures of corruption, protection of their ethnic or tribal interests, or other improper objectives. In this regard, the minority peoples of the Niger Delta

Pipelines Act, Oil in Navigable Waters Act, oil drilling regulations, and the Nigerian National Petroleum 121

region may not, in any given case, have available to them the power of the courts as

vehicles of justice. 199

A major point of this thesis is that law reform is crucial and the reform and

improvement of the judiciary is a necessary component. Certainly, corruption and

prejudice must be identified, condemned, and rooted out. Additionally, and this is

particularly true in the arena of environmental regulation, education of the judges would

also produce fairer, more effective judicial decisionmaking. Environmental disputes

often require the governmental decision maker to have some knowledge and command of

law, science, economics, culture, and history. Arguably, such education would produce

better decisionmaking and, hopefully, decisions more respectful of the law's objective to

protect the environment. 200

Corporation Act.

199 Interview with Pere Akemotubo (HRM Ezuwei) in his palace at Obotebe, Nigeria (July 15, 2004). The interview was conducted in ljaw language and translated to English language by the author. According to the traditional ruler most Nigerians particularly the Hausa- Fulani, Yoruba, and Ibo, environmental law is synonymous to oil and gas resources allocation and the agitation of the Niger Delta people (ljaw and Ogoni). Therefore, the better the environmental laws, the higher compensation amounts they receive and the more attention is attracted to their suffering.

200 Interview with Honorable Justice Dorubor D. Narebor in his office at the High Court of Justice No. 2 Warri Delta state, Nigeria (May 5, 2002). 122

The .Tnrisrlidional Hierar~hv of the Niveria

SUPREME COURT

THE FEDERAL COURT OF APPEAL WITH DIVISIONS IN

PORT IBADAN I ABUJA I G;] t---E_NU_G_u_..... HARCOURT KADUNA

FEDERAL SHARIA STATE THE HIGH COURT CUSTOMARY HIGH COURTS OF HIGH OF THE FED. COURT OF COURT APPEAL COURT CAPITAL APPEAL TERRITORY

SHARIA REVENUE ADMINISTRATIVE AREA AREA OR TAX AGENCIES WITH QUASI CUSTOMARY COURTS COURTS JUDICIAL FUNCTIONS COURT

ALKALI DISTRICT COURTS CUSTOMARY COURTS

E. The Received the English Environmental Law

English common law, principles of equity, and statutes of general application on or before January 1, 1990 are a major and influential component of

Nigerian law. English environmental law, as a subset of that larger body, became

Nigerian law, first through "reception clauses" in the colonial era and again at 123 independence through certain legislative enactments. One classical example of reception legislation is sections 45(1)-{3) of the Interpretation Act,201 which provide:

1. Subject to the provisions of this section and except in so far as other provision is made by any federal law, the common law of England and the doctrines of equity, hereafter, with the status of general application shall be in force in Lagos.

2. Such imperial laws shall be in force as far only as, the limit of the Jurisdiction and local circumstances shall permit and subject to any federal law.

3. For the purpose of facilitating the application of the said imperial laws, they shall be read with such formal alterations not affecting the substance as to names, locations, court, officers, persons, moneys, penalties and otherwise as may be necessary to render the same applicable to the circumstances.

Decisions to proceed with these local enactments, through which the Nigerian federal and regional governments received and applied the English legislation, led some writers like T. B. Smith to suggest that the enactments were simply a matter of the voluntary acceptance of well-drafted legislation.202 These and similar imperialist views were readily put forward by British colonial law commentators. But these were by no means the dominating viewpoint. Others, like J. Cottrell, viewed Smith's comment on the

201 Interpretation Act, (2004) Cap. 89, § 45 (Nigeria).

202 T.B. SMITH, RELATION OF THE COMMON LAW IN THE COMMONWEALTH: SCOPE AND EXTENT IN THE OLDER COMMONWEAL TH 5 (1982) (unpublished proceedings of the Sixth Commonwealth Judges conference). 124 reception of English law as lacking objectivity.203 The most accurate description of the matter is perhaps that English common law migrates to the old British Commonwealth by conquest or colonization rather than because of any intrinsic merits.204

There is a growing controversy on the correct word or phraseology to describe the reception of the English law. To some it is a misnomer to refer to the

English law's applicability in Nigeria as "received,"205 because this gives the false impression that it was willingly received. Others hold an opposing view.

The received English law (including environmental law) has had its advantages and disadvantages over the years. Today, no matter its usefulness (or lack thereof) it will readily be treated by Nigerian courts as persuasive. Indeed, it is no exaggeration to say that English law forms the bedrock upon which the edifice of

Nigeria's legal system is erected. Notably, however, Nigeria has also accepted externally-generated laws and jurisprudence of its own volition. The advent of the

American-styled constitution of the Federal Republic of Nigeria of 1979 and that of 1999 marked the introduction of strands of American legal jurisprudence.206 And as discussed below, Nigeria has also acceded to several international law agreements.

203 J. Cottrell, The Reception ofEnglish Law in Commonwealth: The Need for Integration; A. Alloit,,Reception ofthe Common Law in Common Wealth: Some Problems ofthe Resulting Plural. (unpublished Judges Conference Proceedings) 164 (1982).

204 Id.

205 Cottrell, supra note 203.

206 MAGARET FUBARA, ENVIRONMENTAL LA w AND POLICY IN NIGERIA 3 (Caltop Publications Nigeria Ltd. 1998). 125

F. International Treaties, Conventions, and Protocols on Environmental Law

Environmental treaties have dominated international treaty making and, by necessary implication, international law for the past three decades, apparently because of the fundamental issues covered by these environmental treaties.207 Increasingly, world leaders and citizens alike have come to appreciate the importance of these devices for invoking "good science" in coordinated efforts by diverse stakeholders seeking effective global solutions to pressing global environmental problems.208

In the past two decades international environmental law has helped to bring attention to many identifiable environmental problems confronting humanity. For example, the Niger Delta environmental degradation and its socio-economic or cultural implications are made much more easily identifiable because of the crystallization of these otherwise obscure environmental problems in these global environmental treaties.209 Most literate interviewees in all the clans throughout the

201 Id.

208 As was the case Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 1997), Convention on Biological Diversity (adopted 1992), Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES") (adopted 1973), United Nations Convention to Combat Desertification (adopted 1994), Convention on Persistent Organic Pollutants (Stockholm Convention) (adopted 2001), Energy Charter Treaty (adopted 1994), Convention on Wetlands oflntemational Importance especially as Waterfowl Habitat (Ramsar) (adopted 1971).

209 Id. 126

Niger Delta feel very passionate that their environmental problems can only be properly

addressed through successful implementation of enforceable international environmental

laws.210

These international environmental treaties are classified into two broad

categories. They are bilateral if the treaty is between two countries and they are

multilateral where the treaty parties are more than two in number. International

environmental treaties are often described as "hard" when the treaty in question provides

for clear mandatory obligations with in-built mechanisms for compliance (such as the

Convention on Persistent Organic Pollutants or the Stockholm Convention) and "soft" if

the agreements are merely declarative without mandatory obligations (such as the

Johannesburg Declaration on Sustainable Development).

Modern, international environmental law treaties have in recent years often provided for

a secretariat with a full-blown administrative infrastructure for monitoring and

implementation. In spite of these and other improvements, treaty compliance has been a

considerable problem. Most (but certainly not all) such problems have been dealt with in

the Vienna Convention.211 Treaties usually come into force by agreement, sometimes

210 Id. 211 Vienna Convention on Treaties (Sept. 6, I 958). Nigeria only acceded to this treaty through the United Kingdom because Nigeria had not obtained political sovereignty when the treaty was adopted. 127

upon a specific number ofratifications.212 It is standard practice for treaties to either

allow or prohibit the entering of a reservation.213

In Nigeria, section 12 of the Constitution provides expressly that all

international environmental treaties, like other international laws entered into by the

government, must be incorporated into Nigerian municipal law before it can be legally

enforced in Nigerian courts:

(1) No treaty between the federation and any other country shall have the force of the law except to the extent to which such treaty has been enacted into Law by the National Assembly.

(2) The National Assembly may make Laws for the federation or any part thereof with respect to matters not included in the exclusive legislative list for the purpose of implementing a treaty.

(3) A bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the president for assent, and shall not be enacted unless it is ratified by a majority of all the House of Assembly in the Federation.

G. Writings of Environmental Jurists

Because the development of environmental law and policy is at its infancy

in Nigeria, existing writings in Nigerian environmental law are dedicated to analysis of

212 Convention on Persistent Organic Pollutants (Stockholm Convention), art. 26 (adopted 2001). "This convention shall enter into force on the ninetieth day after the date of deposit of the fiftieth instrument ofratification, acceptance, approval or accession." Id.

213 Id. at art. 27. 128 legislation and cases dealing with the environment.214 The extent ofreliance on these environmental textbooks or writings (including law journal articles, and other commentaries) depends on the extent to which a particular writer or author commands influence among judges, attorneys or legal practitioners, policy makers, the legislature, the law reform commissions, and students in general.

From an evidentiary perspective, these environmental law writings are usually allowed into evidence as having probative value if they are of sufficient scholarly reputation. Additionally, where a work is cited to buttress a point of law, then it is admissible as legal authority,215 although a court may choose to accord it less weight than a statute or a case.

214 See generally ATSEGBUA, AKPOTAIRE & DIMOWO, ENVIRONMENTAL LAW IN NIGERIA- THEORY AND PRACTICE (Ababa Press Ltd. 2004); J. FININE FEKUMOR, OIL POLLUTION AND COMPENSATION IN NIGERIA (F & F Publishers Nigeria Ltd. 200 I); MAGARET FUBARA, ENVIRONMENTAL LAW AND POLICY IN NIGERIA (Caltop Publications Nigeria Ltd. 1998).

215 A. E.W. PARK, THE SOURCES OF NIGERIAN LAW 87 (Sweet & Maxwell 1963). PART TWO

THE ENVIRONMENTAL LEGAL FRAMEWORK IN NIGERIA

CHAPTER FIVE

FOCUS ON EIA: COMP ARING NIGERIA TO THE UNITED ST ATES

The Environmental Impact Assessment ("EIA") concept has generated considerable interest among scholars, researchers, policy makers, politicians, advocates, and citizens. This perhaps accounts for the importance governments now attach to the topic. Regulators and others with the power to influence environmental policies and practices throughout the world have endorsed the EIA process, as reflected in the numerous laws, regulations, and procedures incorporating the concept.

Technically, the Nigerian EIA process is part of the legal system applicable to oil and gas production in the Niger Delta that was discussed in the previous chapter. Nevertheless, because the process bears such potential importance to the sustainable development of the region, it merits the separate and substantial treatment accorded it in this chapter. Notably, the chapter addresses the comparable processes under Nigerian and United States EIA law. Relevant in this regard are the facts that:

~ Many major US-based multinationals conduct oil and gas operations in

the Niger Delta;

~ Relevant Nigerian laws are based on the US model; and

129 130

~ The US model has been instrumental in the growing use of the EIA

process around the world.

In the United States, the main EIA statute is the National Environmental

Policy Act ("NEPA") of 1969. NEPA provides the legislative framework for a process that under certain circumstances requires preparation and procedures leading to what came to be known as an "environmental impact statement" ("EIS").216 Accompanying

NEPA are the regulations, guidelines and other interpretations of the federal Council on

Environmental Quality ("CEQ") and of the affected federal agencies, departments, and political subdivisions. In Nigeria, the main environmental statute is the Federal

Environmental Protection Agency Act ("FEPA").217 The rules, practices, and procedures for the EIA process are governed by FEP A and the specific EIA legislation-the

Environmental Impact Assessment Act. 218

Whereas NEPA sets forth significant substantive national environmental goals, its mandate provides for procedural action forcing fully informed and well- considered environmental decision-making. A decision reached by trial judges, however, is not necessarily a decision the judges of the Courts of Appeals or of other courts would reach had they been decision-making officials of the agency.219

216 See 42 U.S.C. §§ 4321-4347, (2006). As used in this dissertation, the term "Environmental Impact Assessment" ("EIA") shall be used generically to describe the American EIS and other processes.

217 Federal Environmental Protection Agency Act, (2004) Cap. FIO, § I (Nigeria).

218 Environmental Impact Assessment Act, (2004) Cap. El2, §§ 1-2 (Nigeria).

219 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978). 131

A. The Environmental Impact Assessment and Its Relationship to Sustainable Development

EIA is the process by which affected actors investigate and analyze the

critical environmental consequences or concerns of a proposed activity.220 In other

words, EIA is the prior environmental assessment of proposed activities that may affect

the environment.221 These definitions, like many others too numerous to list in this

dissertation, raise serious philosophical, analytical, and a host of other intellectual

questions such as:

~ What clear discernible variables (such as social, economic, psychological,

physical, political, cultural, or other measurable variants) ought to be

considered when conducting an EIA?

~ What is the threshold or standard by which such variables can be adjudged as

a negative or positive impact?

~ What institutional framework can produce the required functional EIA, and to

what extent should findings be subject to review by agencies or courts?

~ What are the power dynamics and relationships inherent in determinations

made in EIAs and to what extent should decisions reached affect future policy

or other interventions?

220 Orubebe Bibobra Bello, Comparative Analysis of EIA in Nigeria and the United States of America Oil & Gas Sector (Apr. 21, 2001) (unpublished paper for LLM Seminar at American University, Washington College of Law) (on file with the author). 132

)- To what extent should decisions reached in the EIA process exclude or

include alternatives?

It is instructive to note that there exits a link between EIA and sustainable development. This is because at both the international and municipal levels EIA has

become a primary tool in achieving the goal of sustainable development by allowing the integration of economic, cultural, social, and environmental concerns in decision-making process.

The definition of sustainable development-"development that meets the needs of the present generation without compromising the ability and rights of future generations to meet their own needs"-was popularized by The World Commission on

Environment and Development ("WCED"). Headed by Gro Harlem Brundtland, the

WCED set out the concept in its 1987 report entitled Our Common Future. 222 One significant observation about sustainable development in the African context is that most of the central ideas of sustainable development were already central provisions in African regional environmental treaties dating as far back as 1968. For instance, such treaties included provisions requiring the adoption of measures to ensure conservation, utilization, and the development of soil, water, flora, and fauna in accordance with scientific principles and with due regard to the best interests of the people. These measures were required to be prominent in the formulation of development plans, and full consideration was to be given to ecological as well as economic and social factors.

221 Id. at 3. 222 WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT ("WCED"), OUR COMMON FUTURE 47 (Oxford Univ. Press, 1987). 133

Further, both individual and joint action for the conservation, utilization and development of resources needed to anticipate the present and future welfare of humankind. 223

In the United States there have long been similar ideas with emphasis on public concern for environmental quality. These ideas can be traced as far back as the late nineteenth and early twentieth centuries in the writings and activities of conservation philosophers such as Henry David Thoreau, George Perkins Marsh, and John Muir, and great governance theorists like Theodore Roosevelt, Gifford Pinchot, Aldo Leopold, and

Rachel Carson. 224

No doubt, these thoughtful, often passionate, expressions (as they were often perceived) for the preservation of natural habitats and wild creatures were to a large extent responsible for the passage of numerous laws with EIA and sustainable development features. Examples include the creation of the world's first national conservation park, Yellowstone, in 1872, the Fore st Preservation Act in 1891, the creation of the National Park Service in 1916, the Wilderness Act in 1964, the Wild

Scenic Rivers Act in 1968, NEPA in 1969, and the Endangered Species Act in 1973.225

This critical history and the weight of environmental law development, among other

223 African Convention for the Conservation of Nature and Natural Resources, (Enforcement and Ratification) Act, Art. 11, XIV, if 6 of the Preamble, Nig., Sept. 15, 1968.

224 RA y CLARK & LARRY CANTER, ENVIRONMENT AL POLICY AND NEPA: PAST, PRESENT, AND FUTURE 16 (St. Lucie Press 2000).

22s Id. 134 things, have contributed to the broadening of the meaning of the environmental law principle "sustainable development" in the last three decades. 226

It is now generally accepted that the term sustainable development comprises the concepts of "sustainability" and "sustainable yield," and that it also extends to embrace living and non-living resources.227 This said, the EIA, when used as an instrument of sustainable development, carries significant implications for oil and gas production activities. In particular, a truly comprehensive and effective EIA would address the non-renewable nature of oil and gas and the environmentally and socially harmful features of the related production process. Such an EIA would make the case for the need to phase in other, more environmentally friendly, energy sources and to promote balance and stability in affected ecological and social systems.

Has the EIA process, as it has been deployed in Nigeria and in the US, truly served to achieve the goals of sustainable development? The answer offered in this dissertation is that although the process has often contributed to the protection and promotion of many sound environmental values, sustainable development sets a considerably higher standard. In fact, this dissertation puts forth the case for a re- conceptualization of the EIA process. The following discussion sets the stage for the

226 Charles Okidi, Conference, Environment, Natural Resources, and Sustainable Development in Kenya's Constitution-Making (Jan. 20, 2002). Note that this position paper is frequently revised as was the case on February 20, 2002. With specific reference to the oil and gas industry, an efficient or functional EIA-based land use for sustainable development presupposes the use of non­ renewable oil and gas.

227 ALAN GILPIN, ENVIRONMENTAL IMPACT ASSESSMENT 5 (Cambridge Univ. 1993). 135 reform measures by analyzing the present EIA processes in the United States and

Nigeria.

B. EIA Document Preparation

Timing

The time required to prepare an EIA is not strictu sensu envisaged in either the US or the Nigerian legislation. In the United States, the courts have enunciated the legal principle that, considering the environmentally sensitive nature of the oil and gas industry operations, an EIS must be prepared before making any irreversible and irretrievable commitment of resources. 228 In practice, there is real difficulty in determining the right time to commence an EIA in controversial projects, and this is particularly true in the oil and gas sector. Realistically, political dynamics may impinge upon timing and other significant decisions.

The intervention of politics in the EIA process is always a possibility because the bureaucrats in charge of most countries' EIA agencies, like their judicial counterparts, are required by the statutes establishing these bodies to be appointed by the head of state. But EIA agency officials do not enjoy the constitutional or institutional independence that judicial officers enjoy. This no doubt creates enormous pressure and difficulty in agency decision-making in nascent democracies such as in Nigeria.

228 Conner v. Burford, 836 F.2d 1521, 1523, 1527, 1529, 1531 (9th Cir. 1988). 136

However, in most advanced democracies such as in the US, the courts, the Congress, and

civil society organizations have often served to ensure the integrity of the EIA process.

In the hallmark case of Park County Resources Council, Inc. v. United

States Department ofAgriculture, 229 the court held that an oil and gas leasing project on

federal lands must be of sufficient definiteness before an evaluation of its environmental

impact can be made and alternatives proposed. Thus to require a cumulative EIS at the

leasing stage in this particular case would be tantamount to "demanding that the

Department specify the probable route of a highway that may never be built from points

yet unknown to other points as yet unknown other terrains as yet uncharted in conformity

with state plans yet undrafted. A more speculative exercise can hardly be imagined."230

Who is Responsible for Preparing the EIA?

Under CEQ's NEPA regulations, the "lead" federal agency prepares the

EIA, including the EIS and, if necessary as a preliminary decisional step, the

environmental assessment ("EA"). A contractor selected by the lead agency cannot be

responsible for preparing the EIA if that engagement would amount to a conflict of

interest. The contractor is required to disclose any conflicts of interest in a prescribed

format, namely the disclosure statement. The lead agency's responsibilities include hiring the contractor as well as evaluating the EIS or the EA depending on the situation, regardless of the project proponents. Lead agencies may be assisted by other agencies as

229 Park County Res. Council, Inc. v. U.S. Dep't of Agric., 817 F.2d 609 (I 0th Cir. 1987). 230 Id. at 624. 137 well. In practice, the lead agency is statutorily presumed to be responsible for the preparation of the EIA, and ensuring project compliance with NEPA.

It must be noted that the CEQ NEPA regulations are often lacking in precision and detail, and this, in turn, often leads to litigation. On a positive note, however, judicial interpretations have frequently served as a check on agency decision- making, while at the same time supplementing agency guidance. For example, the courts have enunciated the legal principle that a lead agency cannot abdicate its statutory responsibility.231 They have also added the principle allowing applicants or participants outside of the lead agency to participate in the preparation of the EIS or EA, provided that the lead agency sets out the limits and the requirements of the environmental information required. Through its independent judgment, the lead agency must also control the extent of the applicants' participation through all stages.232 It has also been explained by the courts that when there is more than one agency involved in the preparation of an EIS or in the assessment process of a particular project, there is no need for the cooperating agencies involved in the project to duplicate the work of the lead agency.233

231 Green County Planning Bd. v. Fed. Power Comm'n, 455 F.2d 412 (2d Cir. 1972), cert. denied, 93 S. Ct. 56 (1972).

232 Sierra Club v. Linn, 502 F.2d 43 (5th Cir. 1974), cert. denied, 421 U.S. 994 (1975), reh 'g denied, 422 U.S. 1049 (1975).

233 LaFlamme v. FERC, 945 F.2d 1124 (9th Cir. 1991). 138

Under sections 9(1), 14, 18, 22(2), 23, 24, 30 and 63(1) of the Nigerian

Environmental Impact Assessment Act of2004,234 the Federal Environmental Protection

Agency ("FEP A") prepares the EIA, which could be mandated to a screening panel under section 30 of the EIA Act. 235 The Nigerian statutes did not envisage the need for delegating to others responsibility over technical or other information in the EIA process.

They also did not provide guidance as to the scope and liability of the EIA. Apart from the more complex issue of failure of political will, the absence of action-forcing procedural guidelines largely accounts for the ineffectiveness of the Nigerian EIA process. In addition, the experience and expertise required to prepare an EIA is lacking, especially in the oil and gas sector.

234 Environmental Impact Assessment Act, (2004) Cap. E12, § 30 (Nigeria).

23s Id 139

C. EIA Exclusions and Exceptions

United States

Categorical Exclusion

Under NEPA, certain proposed federal actions are excluded or exempted from the EIA preparation process.236 For example, section 1508.4 applies to certain categories of agency action that do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a federal agency in implementation of these regulations (section

1507.3) and for which, therefore, neither an EA nor an EIS is required. An agency may decide, in its procedures or otherwise, to prepare environmental assessments, even though it is not required to do so. Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect. 23 7

Emergencies

Emergencies include events such as natural disasters and war, "where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of [CEQ's] regulations. "238

236 See 40 C.F.R. §§ 1508.4, l 501.3(b), 1508.7, 1506.11 (2008).

237 40 C.F.R. § 1508.4 (2008).

238 40 C.F .R. § 1506.11 (2008). 140

Statutory Exemption and Statutory Conflict

In certain instances, Congress has exempted specific agency actions and legislation from NEPA compliance, including the Congressional exemption of the EPA from NEPA compliance in its implementation of the Clean Air Act and in parts of the

Clean Water Act, as well as the exemption under the Disaster Relief Act. Additionally, where there is a statutory conflict between NEPA and any other federal statute or legislation, an EIS may not be required.239

239 See 40 C.F.R. § 1507(b) (2008) ("Agency procedures shall comply with these regulations except where compliance would be inconsistent with statutory requirements); Flint Ridge Dev. Co. v. Scenic Rivers Ass'n of Okla., 426 U.S. 776 (1976). 141

Functional Equivalent

Where a statutory or regulatory scheme or an agency process would make a NEPA review redundant or unnecessary, then the legal doctrine of "functional equivalent" applies.240 The functional equivalent doctrine has been applied to many critical environmental programs. In fact, from a sustainable development perspective, the doctrine would appear to have been overused. For example, the courts have upheld its application to a number of substantial activities under major federal statutes: the

Clean Air Act,241 the Comprehensive Environmental Response, Compensation, and

Liability Act,242 the Toxic Substances Control Act,243 the Insecticide, Fungicide, and

Rodenticide Act,244 the Safe Drinking Water Act,245 and the controversial Resource

Conservation and Recovery Act.246 Notably, after the courts determined that the Clean

Air Act was functionally equivalent to NEPA, Congress, in a rare show of legislative act1v1sm,. . su b sequent 1y exempted. 1t. 247

240 Alabamians for a Clean Env't v. EPA, 26 E.R.C. 2116 (D. Ala. 1987).

241 Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974); see also 15 U.S.C. § 793(c)(l) (2006).

242 Schalk v. Reilly, 900 F.2d 1091 (7th Cir. 1990), cert. denied, 498 U.S. 981 (1991).

243 Twitty v. N.C., 527 F.Supp. 778 (E.D.N.C. 1981).

244 Wyo. v. Hathaway, 525 F.2d 66 (10th Cir. 1975), cert. denied, 426 U.S. 906 (1976).

245 W. Neb. Res. Council v. EPA, 943 F.2d 867 (8th Cir. 1991).

246 Alabama ex rel. Siegelman v. EPA, 911F.2d499 (11th Cir. 1990).

247 Clean Air Act, 42 U.S.C. §§ 7401-7626 (2006). 142

The functional equivalence doctrine is most usefully analyzed against a fundamental point about NEPA: the US courts have held repeatedly that NEPA is the general statute that forces agencies to consider the environmental consequences of their actions and obliges them to give the public a meaningful opportunity to learn about and comment on the proposed actions.248_Nonetheless, despite the fundamental and comprehensive nature of the NEPA process, many courts have found no difficulty in determining that a different environmental regime is a sufficient substitute:

If there were no agency object-specific EIA guidelines, such as with RCRA, NEPA would seem to apply here. But RCRA is the later and more specific statute directly governing the EPA' s process for issuing permits on hazardous waste facilities. As such, RCRA is an exception to NEPA's controls.249

The variance in court views is often considerable. For example, in

Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Commission, 250 the court enunciated the legal principle that there are no implied exemptions from NEPA merely because an agency's enabling legislation does not address environmental protection. The

Court stated with emphasis that NEPA does not exempt any federal agency from its requirements, and further, the statute provides that those agencies must comply to the

248 Alba v. EPA, 91IF.2d449 (I Ith Cir. 1990).

249 Id.

25° Calvert Cliffs' Coordinating Comm., Inc. v. Atomic Energy Comm'n 449 F.2d I 109 (D.C. Cir. 1971), cert. denied, 404 U.S. 942 (1972). 143 fullest extent possible.251 The court stated that this language required compliance with

NEPA unless there is a "clear conflict" of statutory purpose.252

Taken together, these cases illustrate the need for a more systematic and consistent articulation of appropriate exemptions under NEPA. Further, such a reformulation would provide an opportunity to develop exemptions more clearly supportive of sustainable development goals.

251 Id

252 See Id; see also RONALD BASS, ALBERT HERSON & KENNETH BOGDON, THE NEPA BOOK 37 (Solano Press 2001). 144

Nigeria

The Nigerian EIA statute provides for wide discretion in environmental analysis and decision-making, particularly regarding the classes and circumstances for exclusion and exemption. For example, Section 2(4) of the Environmental Impact

Assessment Act provides that all agencies and institutions (whether public or private), except those exempted pursuant to this Act, shall apply in writing to the Federal

Environmental Protection Agency ("FEP A" or the "Agency") before embarking on the proposed project, so that subject activities can be quickly and surely identified and environmental assessment applied as the activity is being planned.253 In addition, the statute categorizes institutional and project exclusion or exemption. For example,

Section 15(1) states that an environmental assessment of project shall not be required where:

(a) In the opinion of the Agency the project is in the list of projects which the President, Commander-in-Chief of the Armed Forces, or the Council is of the opinion that the environmental effects of the project is likely to be minimal;

(b) The project is to be carried out during national emergency for which temporary measures have been taken by the Government;

(c) The project is to be carried out in response to circumstances that, in the opinion of the Agency, the project is in the interest of public health or safety.254

253 Environmental Impact Assessment Act (2004) Cap. E12, § 2 (Nigeria).

254 Id. 145

These provisions suggest that the exemption or exclusion from the EIA process or statute is a discretionary power given to the President. Also, the Agency has unfettered discretion to decide whether to carry out an assessment or not, regardless of the nature of the project. This unusual concentration of power, without requisite checks and balances in the EIA process, tends to undermine accountability, transparency, equitable implementation, and predictability in Nigerian environmental law. This wide discretion easily extends to improper applications such as decisions affecting those whose ethnic or business interests are favored by the current Nigerian Federation.

The lack of appropriate use of the discretionary powers accorded the

President and the Agency goes against the clear and unambiguous provisions of sections

23 and 25 of the Nigerian EIA Act, and section 12 of the Schedule to the Act, which unequivocally declare that oil and gas and other petroleum projects must be accompanied by an EIA.255 Section 23 provides that:

Where the Agency is of the opinion that a program is described in the mandatory study list, the Agency shall:

(a) Ensure that a mandatory study is conducted, and a mandatory study report is prepared and submitted to the Agency, in accordance with the provisions of this law; or

(b) Refer the project to the Council for a referral to mediation or a review panel in accordance with section 25 of this Act.

Section 12 of the Schedule expands the scope of this requirement to:

z55 Id. 146

(a) Oil and gas fields' development.

(b) Construction of offshore pipelines in excess of 50 kilometers in length.

( c) Construction of oil and gas separation, processing, handling, and storage facilities.

(d) Construction of oil refineries.

(e) Construction of product depots for the storage of petrol, gas or diesel (excluding service stations) which are located within 3 kilometers of any commercial, industrial or residential areas and which have a combined storage capacity of 60,000 barrels or more. 256

D. Extent of Public Participation

United States

In the United States, the CEQ's NEPA regulations explicitly provide for public participation in the EIA process. Section 1506.6 states that all agencies shall:

(a) Make diligent efforts to involve the public in preparing and implementing their NEPA procedures.

(b) Provide public notice of NEPA-related hearings, public meetings and the availability of environmental documents so as to inform those persons and agencies that may be interested or affected. 257

256 Id. 257 40 C.F.R. § 1506.6 (2008). 147

1. In all cases the agency shall mail notice to those who have requested it on an individual action.258

2. In the case of an action with effects of national concern notice shall include publication in the Federal Register and notice by mail to national organizations reasonably expected to be interested in the matter and may include listing in the 102 Monitor. An agency engaged in rulemaking may provide notice by mail to national organizations that have requested that notice regularly be provided. A~encies shall maintain a list of such organizations. 59

The EIA process entails an environmental review of a proposal for an

action that has been judged to be subject to NEPA. First, all interested agencies select a

lead agency to coordinate the EIA. The lead agency normally then undertakes the

optional step of preparing an environmental assessment. The environmental assessment

evaluates whether the proposed action will significantly impact the environment. This

assessment can then be used to determine whether a detailed EIS is required or whether a

"finding of no significant impact" ("FONS!") can be prepared.260 The CEQ's regulations

at § 1508.13 define a FONS! as "a document presenting the reasons why an action will not

258 40 C.F.R. §§ 1501.7, 1503.1, 1506.6 (2008). These sections outline specific stages in the EIA process at which the agencies shall mail notice to interested parties. These include the initial scoping stage (§ 1501. 7), the comment period after preparing the draft EIS but before preparing the final EIS(§ 1503.1), and dates of public hearings, public meetings, and releases ofrelevant environmental documents(§ 1501.7).

259 40 C.F.R. § 1506.6 (2008) (emphasis added).

260 40 C.F.R. § 1508.9 (2008); see also William Cohen, Issues in NEPA Litigation, National Workshop for District Judges, Arlington, Va., (May 3-5, 2001) available at http://nepa.thwa.dot.gov/ReNEP A/ReNepa.nsf/docs/67 55043DE4 E809 l 285257 l D5007 51 D28?opendocum ent&Group=Legal%20Issues&tab=REFERENCE (last visited Apr. 13, 2009). 148

have significant effect on the human environment and for which an [EIS] therefore will

not be prepared." A US court described the reasoning behind a FONSI as follows:

An EIS must be prepared only when significant negative environmental impacts will occur as a result of the proposed action. If, however, the proposal is modified effectively or in a functional way prior to implementation by adding specific mitigation measures which completely compensate for any adverse environmental impacts likely to stem from the original proposal, the statutory threshold of significant environmental impacts is not crossed, and an EIS is not required. To require an EIS in such circumstances would trivialize NEPA and would diminish its utility in providing useful environmental analysis for federal actions that truly affect the environment.261

If a FONS! is not warranted an EIS must be completed for the proposed

action. The EIS considers the significant environmental impacts and weighs them

against the positive project objectives. For this process, a notice of intent is published, a

scoping process is conducted, and a draft EIS is prepared and circulated for review.

A participatory public hearing is held if required or ordered. The draft

EIS is then filed with the EPA. An open public hearing is held after which the final EIS is prepared, circulated, and filed with the EPA. When the final EIS is adopted, the lead agency makes a decision on it and a Record of Decision ("ROD") is prepared. A ROD is

a written public record explaining why the lead agency has taken a particular course of action. In practice, however, it includes an explanation of the decision of the proposed action; factors considered in making the decision; alternatives considered and the environmentally preferred alternatives; any adopted mitigation measures or reasons why 149 particular mitigation measures were not adopted; and a monitoring and enforcement program for those mitigation measures that were adopted.262

Each of these steps accords opportunities for public participation to interested groups, including native Indian tribes. The public can obtain important baseline information about the proposed action. The proceedings maintain a transparent nature by making information readily available through a host of technologies including geographical information systems ("GIS"), high-resolution remote sensing, satellite imagery, and Internet technology. Thus, the average citizen interested in a particular agency action can keep track of the EIA process and participate meaningfully, with or without a Non-Governmental Organization's ("NGO") assistance.

NEPA's procedural nature coupled with the fairly high level of public participation helps to ensure that the lead agency modifies its proposals to minimize negative environmental impacts. The EIA process has forced lead agencies to abandon proposed actions that were found to have unjustifiable significant environmental impacts.

Through the public participation process, citizens' groups and environmental NGOs have obtained enough information on particular projects to use as a focal point for future judicial challenges in U.S. courts.

261 Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v. Peterson, 685 F.2d 678, 682 (D.C. Cir. 1982).

262 40 C.F.R. § 1505.2; see also Bass, supra note 252, at 83. 150

Nigerian Experience

In Nigeria, the EIA Act provides for some degree of public participation in the EIA process.263 Relevant sections of the Act include sections 7, 9(3), 11(1), 25(2),

57(1), 57(2) and 57(3). Section 7 suggests that the agency provide the opportunity to make comments on an EIA to government agencies, members of the public, experts in any relevant discipline, and interested groups before the agency makes its final decision on an activity. Section 9(3) provides that even if no interested person or group requests a report, the agency still has the duty to publish its decision in a manner by which members of the public or persons interested in the activity will be notified. Section 9(4) mandates

FEP A to make a reasoned determination on an appropriate method by which the decision of the agency shall be published so as to reach interested persons or groups, in particular, the originators or persons interested in the activity subject to the decision. Section 11 ( 1) states that when information provided as part of EIA indicates that the environment within another state in the federation or a local government area is likely to be significantly affected by a proposed activity, the state of the local government area in which the activity is being planned shall, to the extent possible:

(a) Notify the potentially affected state or local government of the proposed activity

(b) Transmit to the affected state or local government any relevant information of the environmental impact assessment

263 Federal Environmental Protection Agency Act, (2004) Cap. FIO, § I (Nigeria). 151

(c) Enter into timely consultations with the affected state or local Government.

Despite all these sections,264 which when read together create the impression that public participation under the Nigerian EIA process is thorough and extensive, such participation in practice remains limited and vulnerable to discretionary abuses. The implementation of a robust public participation scheme has been "bogged down" by many factors including: 1) the endemic corruption in the country; 2) the lack of interagency and multidisciplinary human capacity; 3) the lack of compliance enforcing incentives in the oil and gas industry; 5) the non-existence of a core enforcement machinery; 6) the lack of a coordinated legal framework for EIA and sustainable development; 7) the lack of transparency and accountability in the industry; 8) the failure of the judiciary and the legislative arms of government to assume their oversight roles; 9) the level of poverty and discontent in Niger Delta indigenous communities; and 10) the lack of political will and vision by the leadership.

In spite of the above and other fundamental shortcomings in the Nigerian

EIA process and statutes, much power is still vested in the agency bureaucrats. These bureaucrats in most instances exercise their discretion in a manner that undermines the public's involvement. This happens when EIA reviews that concern affected

264 Other important provisions include section 25(2), which declares that, "prior to the deadline set out in the notice published by the agency, any person may file comments with the agency relating to the conclusions and recommendations of the mandatory study report." Section 57(1) states that "for the purpose of facilitating public access to records relating to environmental assessments, a public registry shall be established and operated in accordance with the provisions of this Act in respect of every project for which an environmental assessment is conducted." 152 stakeholders in the interior are organized in hotels in the cities, without adequate provision of notice and information-all at the insistence of the multinational oil and gas corporations. The situation is further aggravated by the fact that the actual persons that are impacted by these oil and gas projects are hundreds of kilometers away from where the supposed notices are displayed. Furthermore, many of these people are not literate in the English language and are thus unaware of relevant notices and documentation. These deficiencies in the public participation process result in the denial of any meaningful opportunity to comment to those who are most inordinately affected and whose lives will potentially experience the greatest impacts by the proposed projects.

Section 57(2) provides that "the public registry in respect of a project shall be maintained (a) by the agency from the commencement of the environmental assessment, and (b) until any follow-up program in respect of the project is completed." 153

E. Socio-Economic Impacts and the EIA Process

The requirement to assess socio-economic impacts, as well as health impacts, is an emerging concept in the EIA process.265 Indeed, the implications of a decision to include socio-economic impacts in the assessment are substantial. Many interviewees contributing insights, opinion, and information for this dissertation agreed enthusiastically with the idea of such inclusion, and they observed that the more comprehensive review associated with this approach comported with both their traditional views and with emerging, modem ideas of ecosystem management. The term

"environment," in their view, necessarily comprises the human experience in its individual and collective presences in the world. They believe that an EIA process must therefore include such dimensions.266

Others are of the opinion that socio-economic, aesthetic, psychological, and other related impacts are distinct from conventional environmental impacts and require a separate impact assessment process. Consequently, they believe, such impacts should be treated as distinct variables, to be considered in a social and economic impact assessment process.

265 International Finance Corporation ("IFC"), Environmental Guidance Notes (2007) available at http://www.ifc.org/ifcext/sustainability.nsf/Content/GuidanceNotes (last visited Apr. 13, 2009); see also United Nations Economic Commission for Europe, Protocol on Strategic Environmental Assessment art. l(e) (2003).

266 Scholars such as Alan Gilpin, are of the view that Social Impact Assessment ("SIA") is a sub-set ofEIA, an assessment of the impact on people and society of major policies, plans, programs, activities, and developments. Social impacts or effects are those changes in social relations between members of a community, society or institutions, resulting from external change. The changes might be physical or psychological, involving social cohesion; general lifestyle; cultural life; attitudes and values; social tranquility; relocation of residents; and severance or separation. GILPIN, supra note 227, at 172. 154

United States

In the United States, CEQ regulation 1508.14 provides that the "human environment shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment. "267 CEQ regulation

1508.8's definition of "effect" states that economic or social effects are not, on their own, intended to require preparation of an EIS. However, once an EIS is prepared and economic or social effects are interrelated with natural or physical environmental effects, the EIS will discuss all of these, including their effect on the human environment.

In Metropolitan Edison Co. v. People against Nuclear Energy, 268 the

United States Supreme Court was faced with the issue of whether the concerns of people who may suffer from psychological anxiety, tension, fear, sense of helplessness, and other accompanying physical disorders relating to the risk that their relatives may be harmed in a nuclear accident should be considered in a NEPA review of the renewed operation of a nuclear reactor. The Court held that:

We do not mean to denigrate the fears of PANE's members, or to suggest that the psychological health damage they fear could not, in fact, occur. Nonetheless, it is difficult for us to see the differences between someone who dislikes a government decision so much that he suffers anxiety and stress, someone who fears the effects of that decision so much that he suffers similar anxiety and stress, and someone who suffers anxiety and stress that "flow directly," ... from the risks associated with the same decision. It would be extraordinarily difficult for agencies

267 40 C.F.R. §§ 1500-1508 (2008).

268 Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 773-78 (1983). 155

to differentiate between "genuine" claims of psychological health damage and claims that are grounded solely in disagreement with a democratically adopted policy. Until Congress provides a more explicit statutory instruction than NEPA now contains, we do not think agencies are obliged to undertake the inquiry. 269

As noted earlier, according to the CEQ regulations, "economic or social effects are not intended by themselves to require preparation of an environmental impact statement."270 Rather, when an EIS is prepared "and economic or social and natural or physical environmental effects are interrelated, then the environmental impact statement will discuss all of these effects on the human environment. "271 It is against this regulatory backdrop that the advocates, theorists and jurists debate the proper role of social, psychological, economic, and other such impacts in the NEPA process.

269 Id at 778.

270 40 C.F.R. § 1508.14 (2008).

211 Id 156

Nigeria

The Nigerian EIA statute does not expressly provide for the consideration

of socio-economic impacts. This omission carries grave consequences for the EIA

process directed at oil and gas production in the Niger Delta region. Indeed, the social,

psychological, and other human impacts of production rival the economic ones. Further,

all these impacts become aggravated by the failure of political will at the federal and

state governmental levels, and by the flawed collaborative approach between these

governments and the multinational corporations.

Reform of the EIA process in a manner more forcefully directed at

sustainable development goals would necessarily involve the prominent inclusion and

weighing of social, psychological, cultural, economic, and other values. Such a

reformulation would require providing government with all conceivable data concerning

sociological trends, economics, infrastructural needs/requirements, and environmental

concerns. The latter category should include information regarding the ecosystem,

biodiversity, wetlands, species extinction, equity and rights issues, and the like. If the

government used its resources to implement a transparent, accountable, and participatory

action-forcing EIA process, this would help improve its decision-making capabilities

with regard to long-term planning, law making, general governance, sustainable

development, and land use.

In pursuing these goals, the Nigerian government should give multinational corporations the opportunity to proactively identify the socio-economic and

environmental complexities of the oil and gas industry activities, including their 157 corporate social responsibilities. This would enable them to draft policy and undertake other interventions that would help them secure the goodwill of the host communities, achieve a sustainable operating environment, maximize economies of scale, and improve their performance regarding sustainable land use. It is also necessary to improve the quality of participation of host communities in the decision-making process via public forums. This will help improve their socio-economic, cultural, psychological, and environmental well-being. Giving these communities a voice will provide a sense of belonging and an increased quality of life.

F. Cumulative Impacts, Ecosystem Analysis, and Biodiversity

United States

In the United States, CEQ NEPA regulation 1508.5 defines "cumulative impact" as "the impact on the environment, which results from the incremental impact of the action when added to other past, present and reasonably foreseeable future actions regardless of what agency [federal or non-federal] or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time."

There is a growing controversy regarding the right analytical approach to assessing cumulative impacts. This problem has progressively gotten worse with the numerous CEQ NEPA guidelines adopted over the years, notably in 1970, 1971, 1973, 158 and 1979. 273 These guidelines have raised questions regarding the validity of the analytical methods conceived, as they relate to direct, indirect, and cumulative impacts that most often encompass either specific local projects or multiple projects that cover a large geographical area. Ray Clark and L.W. Canter suggest that "the simplest approach for impact prediction is to utilize analogs, or comparisons to the experienced effects of existing similar projects or types of actions. This could be termed a 'look-alike' approach."274 This simply re-emphasizes the need to assess cumulative impacts, ecosystem analysis, and biodiversity in EIA.

In 1997, CEQ published a handbook entitled Considering Cumulative

Effects under the National Environmental Policy Act.275 This handbook contained general principles and a step-by-step approach to the evaluation of cumulative impacts.276

Although this handbook has no legal authority it is generally considered to be persuasive.

In 1999, CEQ published a memorandum on cumulative impact analysis.277 This document suggested that resources, ecosystem components, geographic boundaries, time periods, including past, present, and reasonably foreseeable future actions, environmental

273 C. WOOD, WHAT HAS NEPA BROUGHT ABROAD? IN ENVIRONMENT AL POLICY AND NEPA: PAST, PRESENT, AND FUTURE 115 (Ray Clark et al. eds., 1997). 274 CLARK & CANTER, supra, note 224, at 20.

275 COUNCIL ON ENVIRONMENT AL QUALITY ("CEQ"), CONSIDERING CUMULATIVE EFFECTS UNDER NEPA 9 (1997).

276 Id. at iii.

277 CEQ, MEMORANDUM ON CUMULATIVE IMPACT ANALYSIS, 4 (1999). 159

conditions, and the thresholds used to assess resource degradation, should all be key

components used in the course of cumulative impact analysis. 278

There is continuing controversy over what cumulative impacts can be

assessed when dealing with habitat and vast geographical areas. This dilemma should be

taken into consideration when conducting an assessment. Commenting on this issue,

Mandelker and Cohen noted that the dispute over the northern spotted owl habitat in the

old-growth federal forests of the Pacific Northwest has continued since the 1970's.279

There have been court injunctions that have severely restricted new timber sales

programs in federal forests located within the northern spotted owl habitat. In 1993,

President Clinton convened the Forest Conference, in Oregon, to address the significance

of the human and environmental needs served by the federal forests. 280

The President directed his Cabinet to craft balanced, comprehensive, and long-term policy for the management of over 24 million acres of public land. The proposal of the Departments of the Interior and Agriculture was analyzed in a draft EIS that received over 100,000 public comments during a three month public comment period. The final EIS was made available to the public in February 1994. It took an ecosystem analysis approach.281

The debate continues on the subject, and no small part of the conclusions and ultimate application of the concepts involved depend on the interactions of stakeholders in the

218 Id.

279 DANIEL R. MANDELKER & WILLIAM M COHEN, ISSUES IN NEPA LITIGATION 48 (Apr. 3, 2001) (unpublished manuscript on file with author).

280 Id.

281 Id. at 48-49. 160 governmental, corporate and civil society communities. Suffice it to say, however, that effective sustainable development policy requires the broadest and most comprehensive consideration of cumulative impacts.

Nigeria

Under the Nigerian statute, section 4( d), and EIA should include, at a minimum, the following:

(a) An assessment of the likely or potential environmental impacts of the proposed activity and the alternatives, including the direct and indirect, cumulative, short-term and long-term effects.282

The Nigerian statute mentions cumulative short-term and long-term effects only in passing. Not surprisingly, given the inhibitory factors discussed throughout this dissertation, application of the statute has produced inadequate analyses and outcomes with regard to this potentially powerful assessment concept.

282 Environmental Impact Assessment Act, (2004) Cap. El2, § 30 (Nigeria). 161

G. Climate Change, Terrorism, Sabotage, and EIA

Assessment of risks flowing from climate change, terrorism, and sabotage has increasingly been a matter of importance to governments since the aftermath of such tragedies as September 11, Hurricane Katrina, and the Bali and London bombings.

Nevertheless, considerable disagreement exists when discussions proceed to questions of forum and methodology. And this debate includes the issue whether the EIA process is appropriate as an assessment tool of such events.

Some express the view that, in the US, NEPA' s public process is the appropriate forum for the detailed analysis of these risks. They cite its comprehensive, interdisciplinary, and transparent nature, particularly when it is applied with a view toward sustainable development objectives. Others caution that, considering the well­ known shortcomings of the NEPA process, it would serve little or no purpose to saddle an already over-burdened process with the phenomenal task of considering these risks.

As discussed below, this dissertation endorses the use of a reformed EIA process in the assessment of these extraordinary risks. Indeed, from a sustainable development perspective, such extraordinary events are now known to often have a symbiotic relation to social, ecological and even political system functions. And thus, they would be more effectively assessed in the broad, integrated context of these systems as is done in the

EIA process. 162

Climate Change

There is substantial evidence that the rate of global warming will continue to accelerate during the 21st century.283 Its effects will include rising sea levels, changes in agricultural production, severe weather conditions, the spread of diseases such as malaria, and the irreversible alteration of critical ecosystems. Inadequate impact assessment of climate change conditions would likely lead to aggravated initial effects, as well as inadequate mitigation and adaptation.

Despite the growing risks of climate change, many US courts are still reserved about efforts to address climate change through judicial initiatives.284 But some other courts have taken a different approach. Indeed, the growing scientific consensus around global warming has begun to create a fertile setting for climate change litigation.

Legal theories supporting action to address climate change and global warming continue to appear. Further, although much of the litigation does not occur under NEPA, to the extent EIA concepts are still at the core of the statutes or legal concepts involved, the cases are clearly relevant to the subject of this dissertation. The following is a brief overview of climate change litigation in the United States.

283 PETER SCHWARTZ & DOUG RANDALL, AN ABRUPT CLIMATE CHANGE SCENARIO AND ITS IMPLICATIONS FOR UNITED STATES NATIONAL SECURITY 1 (2003).

284 Despite their increasing numbers, climate change plaintiffs have found limited success, especially in state courts. In Connecticut v. American Electric Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005), the U.S. District Court for the Southern District of New York dismissed the plaintiffs claims on the grounds that they raised non-justiciable political questions. 163

In Massachusetts v. EPA,285 the US EPA claimed it lacked the authority or obligation to regulate greenhouse gases. Relying on Congress' failure to enact specific climate change legislation and on certain provisions of the CAA, the agency asserted that

C02 is not an "air pollutant" sufficient to mandate its regulation. Disagreeing with EPA, the U.S. Supreme Court noted:

The harms associated with climate change are serious and well recognized. Indeed, the NRC Report itself, which EPA regards as an "objective and independent assessment of the relevant science," 68 Fed. Reg. 52930, identifies a number of environmental changes that have already inflicted significant harms, including "the global retreat of mountain glaciers, reduction in snow-cover extent, the earlier spring melting of rivers and lakes, [and] the accelerated rate of rise of sea levels durinj the 20th century relative to the past few thousand years."2 6

The Court further observed that standing to bring a claim for such injury exists, even if the injury was "widely shared," so long as the litigant can demonstrate a particular injury to his or her own interests.287 The Court decided that EPA failed to provide a legally adequate justification for its denial of the rulemaking petition. Justice

Stevens' opinion for the majority Goined by Justices Kennedy, Souter, Ginsburg, and

Breyer) advanced the view that greenhouse gases ("GHGs") are within the scope of "air pollutants" as defined by the Clean Air Act ("CAA") and that section 202 (a)(l) of the act authorizes EPA to regulate GHG emissions from new motor vehicles should EPA, in

285 549 U.S. 497 (2007).

286 Id. at 520.

287 Id. at 522 (citing Federal Election Comm 'n v. Akins, 524 U.S. 11, 24 (1998)). 164 its judgment, determine that such emissions meet the "endangerment" test for regulation under that section. 288

The court further determined that there was no conflict between regulation of motor vehicles' GHG emissions under section 202(a)(l) of the CAA and the automobile fuel-economy program administered by the Department of Transportation.

The Court found "no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency."289 The flaw in EPA's decision, is that the agency in making that decision referred to policy reasons that were unrelated to the statutory "cause or contribute" and "endangerment" language. For example, EPA had said that voluntary programs provided an effective response to climate change concerns; that imposing mandatory GHG limits on United States sources could interfere with negotiations with developing countries to control emissions; and that motor vehicle standards would be an inefficient, piecemeal approach. These, according to the learned

Justices, were at best factors that "have nothing to do with whether greenhouse gases emissions contribute to climate change" and do not justify "declining to form a scientific

JU. dgment. ,,290

The Court thus concluded that EPA had "offered no reasoned explanation for its refusal to decide whether greenhouse gases causes or contribute to climate

288 Id. at 532.

289 Id.

290 Id. at 523-24. 165 change."291 Commenting on the Supreme Court's ruling, Professor William Cohen postulated that the importance of this case is how it deals with the science of climate change. It is no longer remote and speculative.292

291 Id. at 534. Kevin M. Gallagher, Summary of Second Annual Legal Dimensions of Climate Change Conference, (May 2007) held at American University, Washington College of Law. This Summary reports on the detailed analysis of climate change litigation in the United States presented by Norman W. Fichthorn and Allison D. Wood at the conference. Among the cases discussed were Comer v. Murphy Oil, US.A., No. 1:05cv436LG-RHW (S.D. Miss. Sept. 20, 2005) and California v. General Motors Corp., No. 06-5755-EMC (N.D. Cal. Sept. 20, 2006). Other cases arising under the CAA include Coke Oven Environmental Task Force v. EPA, No. 06113 (D.C. Cir. Apr. 7, 2006), and Central Valley Chrysler-Jeep v. Witherspoon, No. CVF 04- 6663 (E.D. Cal. Dec. 7. 2004). Coke Oven Environmental Task Force involves EPA 's issuance of new source performance standards for steam electric generating units under section 111 of the CAA. EPA did not set a new source performance standard for carbon dioxide, relying on its finding (at issue in Massachusetts v. EPA) that it has no authority under the Act to regulate to address climate change. Petitioners have challenged the new source performance standards on numerous grounds including that the agency should have set a carbon dioxide standard. The D.C. Circuit severed the carbon dioxide issue from the remainder of the case (New York v. EPA, No. 06-1322 (D.C. Cir. Sept. 13, 2006)) and stayed the climate change issue pending the Supreme Court's ruling in Massachusetts v. EPA. Another notable case is Central Valley Chrysler-Jeep v. Witherspoon, 456 F. Supp. 2d 1160 (E.D. Cal. 2006). With regard to the foreign policy preemption argument, the court held that "[p]laintiffs have demonstrated that current Executive Branch policy is to negotiate with other nations to reach agreements regarding greenhouse gas emissions reductions. They have alleged that the California regulations, by unilaterally reducing such emissions, potentially undercut the executive's ability to pursue such agreements. Accordingly, plaintiffs have stated a claim for preemption of the regulations based on foreign policy." In January 2007, the court issued a stay in the case pending the Supreme Court's decision in Massachusetts v. EPA, finding that the Court's ruling in that case would simplify the issues in the case. Other cases involving these same issues are pending in other states because of section 177 of the CAA. See, e.g., Lincoln Dodge v. Sullivan, No. 1:06-cv-00070-T-LDA (D.R.I. Feb. 13, 2006); Green Mountain Chrysler-Plymouth v. Crombie, No. 02:05-cv-302 (D. Vt. Nov. l 8, 2005) (trial began in April 2007). Another interesting case is Connecticut v. American Electric Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005). Here the court noted that "[t]he scope and magnitude of the relief Plaintiffs seek reveal the transcendently legislative nature of this litigation." The court rejected plaintiffs' argument that the case was "a simple nuisance-case" but "has touched on so many areas of national and international policy." The court cited the extensive "past and current actions (and deliberate inactions) of congress and the extensive efforts within the United States and globally in response to the issue of climate change" and "their specific refusal to impose the limits on carbon dioxide emissions Plaintiffs now seek to impose by judicial fiat." After noting that court have "an unflagging duty to refrain from resolving questions of high policy, which are for the political branches," the court held that resolving these cases would have required the court in effect to legislate on numerous policy issues, including the level at which to cap the utilities' emissions, an appropriate schedule for emission reductions, an assessment of alternative energy resources, and decisions implicating pending international negotiations, the nation's energy supply, and national security. The cases are now pending before the U.S. Court of Appeals for the Second Circuit, which heard oral arguments on June 7, 2006. 166

NEPA has also been the basis for some significant climate change litigation. For instance, in Mid States Coalition for Progress v. Surface Transportation

Board, 345 F.3d 520 (8th Cir. 2003), the US Court of Appeals for the Eight Circuit held that the Surface Transportation Board violated NEPA by, among other things, failing to consider the climate change impact of its approval of a rail line to transport coal from the

Power River Basin. In a supplemental environmental impact statement that it issued as a result of that decision, the board concluded that the rail line would not lead to a net increase in GHG emissions. Environmental groups challenged the sufficiency of the board's supplemental environmental impact statement, raising for the first time a challenge to the adequacy of the agency's climate change analysis under NEPA. The

Eight Circuit upheld the board's supplemental environmental impact statement, including the climate change analysis, finding that it met NEPA's requirements.

In Friends ofthe Earth v. Mosbacher,293 the court rejected the government's argument that it did not have to conduct a NEPA analysis for foreign projects. The court found the evidence insufficient to determine, in the context of a

292 AMERICAN LAW INSTITUTE, NEPA IN THE COURTS 6 (2007). In this detailed work, Professor William Cohen insists that despite the current mixed fortunes of climate change plaintiffs, several cases are potential landmark NEPA certification cases, including Center for Biological Diversity v. National Highway Traffic Safety Administration, No. 06-71891 (9th Cir. 2007), Mayo Federation v. Surface Transportation Bd, No. 06-2031 (8th Cir. 2007), Friends ofthe Earth v. Mosbacher, 2005 WL 2035596 (N.D. Cal. 2005). See also Border Power Plant Working Group v. Department of Energy, 260 F. Supp. 2d 997 (S.D. Cal. 2003); Mid State Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520 (8th Cir. 2003). A case involving climate change and the California little-NEPA law is pending in the California Superior Court (Natural Resources Council v. Reclamation Bd.). It involves the San Joaquin Delta Development.

293 Friends of the Earth v. Mosbacher, No. C-02-4106-JSW, 2007 WL 962955 (N.D. Cal. Mar. 30, 2007). 167

motion for summary judgment, whether the challenged projects constitute a "major

federal action" under NEPA. The parties were ordered to submit a joint case

management statement to the court regarding how the case should proceed.

The trend toward increased NEPA litigation continues. For example,

Center for Biological Diversity v. Kempthorne, No. 07-CV-00894 (N.D. Cal. 2007)

sought an EIS of a project for oil and gas exploration and associated GHG effects,

particularly including the impact on polar bears and the Pacific walrus. The case has

been transferred to federal district court in Alaska. In Mayo Foundation v. Surface

Transportation Board, 472 F.3d 545 (8th Cir. 2006), plaintiffs argued that a railroad

extension would create additional GHG emissions. The Court found that a supplemental

EIS prepared on the project did not violate NEPA because the overall impact of the

project would be to increase GHG by only a small amount.

Tort Nuisance theories have also provided a legal basis for some climate

change litigation. Thus, in Comer v. Murphy Oil, US.A., 294 No. 1 :05-cv-436-LG-RHW

(S.D. Miss. Sept. 20, 2005), plaintiffs sought monetary damages against four groups of

defendants: oil companies; coal companies; electric utility companies; and chemical

manufacturing companies. Plaintiffs alleged that GHG emissions from defendants'

business activities have increased and that defendants' GHG emissions were approximate and direct causes of an alleged increase in the destructive capacity of Hurricane Katrina.

Plaintiffs sought to certify the case as a class action on behalf of all Mississippi citizens

294 Comer v. Murphy Oil, U.S.A., No. 1:05-cv-436-LG-RHW (S.D. Miss. Sept. 20, 2005). 168 who suffered losses from Hurricane Katrina. Plaintiffs allege, in addition to nuisance claims, claims based on trespass, negligence, fraudulent misrepresentation and concealment, unjust enrichment, and civil conspiracy theories. The court dismissed the case on August 30, 2007 onjusticiability and standing grounds.

On February 26, 2008, the Alaska Native Village of Kivalina and others filed suit against numerous defendants, including oil, power and coal companies.295 The village of Kivalina alleged, among other things, that the defendants' GHG emissions are a nuisance under both federal and state law, and demanded monetary damages of up to

$400 million for the costs of relocating the entire village.

These cases illustrate the increasing determination of plaintiffs to use the courts to press for global climate change solutions. It remains to be seen how successful the suits will be. Certainly, the increasing certainty of the science, as well as the growing factual evidence of climate change effects, will be of some help. Also, the apparent increase in the overall awareness and responsiveness of the courts to climate change should be considered in assessing the prospects of climate change litigation in the future.

Nonetheless, the outcome is hardly discernible at the moment.

295 Native Village of Kivalina v. ExxonMobil Corp., CV 08-1138 (N.D. Cal., Feb. 26, 2008). 169

Terrorism and Sabotage

In two recent rulings, San Luis Obispo Mothers for Peace v. Nuclear

Regulatory Com 'n296 and Trivalley CAREs v. Department ofEnergy, 297 the Ninth Circuit

Court of Appeals held that these agencies must consider the threat of terrorism activity in their NEPA documents. On December 1, 2006, the Department of Energy ("DOE") issued interim guidance that all of DOE EIS's and EA's, whether for nuclear or non- nuclear proposals, must consider the potential environmental impacts of sabotage and terrorism.298 It might be helpful to review the arguments made by the federal agencies and the responses of the Ninth Circuit. In the Nuclear Regulatory Commission ("NRC") decision, the court set out the NRC's positions and responses.

The NRC determined that four grounds "cut against using the NEPA framework" to consider the environmental effects of a terrorist attack: ( 1) the possibility of a terrorist attack is far too removed from the natural or expected consequences of agency action; (2) because the risk of a terrorist attack cannot be determined, the analysis is likely to be meaningless; (3) NEPA does not require a "worst-case" analysis; and (4)

NEPA's public process is not an appropriate forum for reasonableness. The Court concluded that these grounds, either individually or collectively, do not support the

NRC's categorical refusal to consider the environmental effects.

296 449 F.3d 1016 (9th Cir. 2006).

297 2006 U.S. App. Lexis 25724 (9th Cir. 2006).

298 Memorandum from Dept. of Energy, Need to Consider Intentional Destructive Acts in NEPA Documents (Dec. 1, 2006) available at www.gc.energy.gov/NEP A/documents/terrorism-­ interim_nepa _guidance.pdf (last visited Apr. 13, 2009). 170

The NRC responded by simply declaring, without support, that "the possibility of a terrorist attack is speculative and simply too far removed from the natural or expected consequences of agency action to require a study under NEPA." In doing so, the NRC failed to address petitioners' factual contentions that licensing the Storage Installation would lead to or increase the risk of a terrorist attack because (1) the presence of the Diablo Canyon nuclear facility, and (2) the Storage Installation itself would be a primary target for a terrorist attack. We conclude that it was unreasonable for the NRC to categorically dismiss the possibility of terrorist attack on the Storage Installation and on the entire Diablo Canyon facility as too "remote and highly speculative' to warrant consideration under NEPA. In so concluding, we also recognize that the NRC's position that terrorist attacks are "remote and highly speculative," as a matter of law, is inconsistent with the government's efforts and expenditure to combat this type of terrorist attack against nuclear facilities .... We find it difficult to reconcile the Commission's conclusion that, as a matter of law, the possibility of a terrorist attack on a nuclear facility is "remote and speculative," with its stated efforts to undertake a "top to bottom" security review against this same threat. Under the NRC's own formulation of the rule of reasonableness, it is required to make determinations that are consistent with its policy statements and procedures. Here, it appears as though the NRC is attempting, as a matter of policy, to insist on its preparedness and the seriousness with which it is responding to the post-September 11th terrorist threat, while concluding, as a matter of law, that all terrorist threats are "remote and highly speculative" for NEPA purposes .... NRC's dismissal of the risk of terroirst attack as "unquantifiable" misses the point. The numeric probability of a specific attack is not required in order to assess likely modes of attack, weapons and vulnerabilities of a facility, and the possible impact of each of these on the physical environment, including the assessment of various release scenarios. Indeed, this is precisely what the NRC already 171

analyzed in different contexts. It is therefore possible to conduct a low probability-high consequence analysis without quantifying the precise probability of risk. The NRC itself has recognized that consideration of uncertain risk may take a form other than quantitative "probabilistic" assessment .... The NRC's third ground, that it is not required to conduct a "worst-case" analysis, is a non sequitur. Although it is a true statement of the law, the agency errs in equating an assessment of the environmental impact of terrorist attack with a demand for a worst-case analysis .... The NRC's reliance on the fourth PFS factor, that it cannot comply with its NEPA mandate because of security risks, is also unreasonable. There is no support for the use of security concerns as an excuse from NEPA's requirements. While it is true, as the agency claims, that NEPA's requirements are not absolute, and is to be implemented consistent with other programs and requirements, this has never been interpreted by the Supreme Court as excusing NEPA's application to a particularly sensitive issue. See Weinberger v. Catholic Action of Hawaii, 454 U.S. 139 (1981)299 (holding that the Navy was required to perform a NEPA review and to factor its results into decision-making even where the sensitivity of the information involved meant that the NEPA results could not be publicized or adjudicated). Weinberger can support only the proposition that security considerations may permit or require modification of some of the NEPA procedures, not the Commission's argument that sensitive security issues result in some kind of NEPA waiver.

In the NRC cases, the utility company (a party in the case) filed a petition of certiorari to the Supreme Court, but the petition was denied. Commenting on the courts reasoned decision, Professor William Cohen opined, "l think there is a good chance that the Supreme Court will consider the issue raised here in some other case."

The other case could very well be a challenge filed in April 2007 by New Jersey against 172 the NRC in the Third Circuit Court of Appeals. The NRC position is that it would not consider the impact of a terrorist attack in the relicensing review of the Oyster Creek

Nuclear Power Plant. Also, in Tri-Valley, the Ninth Circuit cited its earlier ruling in the

San Luis Obispo Mothers for Peace decision. 300

The threats posed by climate change, sabotage and terrorism are now the focus of advocates' initiatives in the courts, and the EIA process is one of the chosen vehicles being advanced as a means of evaluating them in anticipation of appropriate action. These initiatives are likely to continue. Successful, or at least encouraging, opinions in one or two of the pending cases would do much to encourage this movement toward a comprehensive, integrated evaluation of significant, adverse impacts that require prompt and effective active in order to protect the environment.

In Nigeria, although the threats of climate change, terrorism, and sabotage are grave in the country, particularly in the Niger Delta region, there is no identifiable law, policy, or other response mechanism in place to adequately address these critical concerns within the EIA process. What is needed is internal action within the country, but also leadership by example on the part of the United States.

299 Weinberger v. Catholic Action of Hawaii, 454 U.S. 139 (1981).

300 See supra note 292. 173

H. EIA Imperatives Critical to the Assessment of the Oil and Gas Industry

The major issues of concern that this dissertation asserts should be

addressed in the environmental analysis have been derived from both the concerns raised

over the years and the current NEPA process. The issues of concern encompass

numerous adverse environmental impacts related to offshore and onshore exploration,

development, production, and transportation activities, including: oil spills; loss of

wetlands; air pollution; water quality degradation; accumulation of trash and debris;

damage from pipeline placement activities; platform removal damage; increased vessel

and helicopter traffic; resource multiple-use conflicts; support services conflicts;

population fluctuations; changes to demands on public services; land-use planning

dilemmas; tourism falloff; diminution of aesthetic values; adverse cultural impacts; and

inconsistency with state coastal zone management programs.

Additional concerns, related to vulnerable natural, cultural, and social

values, are: sensitive coastal environments; sensitive offshore resources; water and air

quality; marine mammals, coastal and marine birds; commercial fisheries; recreational

resources and activities; archaeological resources; and, socio-economic conditions. The

potential impact of oil and gas activities could be detrimental to any and all of the above

concerns and issues.

Yet another concern is corruption. Too often, decisions to grant rights to

conduct petroleum operations occur under suspect, or outright illegal, circumstances.

And this substantial problem in Nigeria is typically accompanied by a failure to conduct a

comprehensive EIA. Of course, the essential idea is to smooth the way for unfettered 174 access by the multinational corporations to Nigeria's natural resources, to the benefit of only a privileged few. At times, the powerful, exploitative actors receive the imprimatur of the Nigerian Supreme Court, with the Court interpreting applicable law in a manner that promotes the abuse of both the resources and the peoples of the Niger Delta.301

301 AG-Federation v. Ahia State et al., [2002] 6 N.W.L.R. pt. 764, 542, R.33 at if 653, (Nigeria). 175

I. A Comment on EIA Reform and Recent Trends

Nigeria

The Nigerian statute was originally a military decree promulgated in

1992. It provides the prescriptive legal framework for EIA in the country. This statute is inadequate on a number of levels. A cursory perusal of the decree reveals poor legislative drafting. Several sections, although with good substantive intent, were reduced by poor grammar and language to obscurity. For example, the first section of the decree intends to require an EIA if an activity has a significant effect on the human environment. However, the language of the statute had the opposite effect. It requires that an assessment be made of how the environment impacts the activity, instead of the reverse. The decree contains sixty-four sections arranged in three related parts followed by a schedule. Section 12 is omitted from the decree. The cross-references to other sections of the decree are incorrect, particularly the cross-references pertaining to sections 26(a)-(f), 27(f), 29(f), 47(a)-(f), 53(1)(f) and (2)(f), and 54(1)(f) and (b)(f), and

51(1 )(f).

Nigeria certainly needs a better EIA statute, one that is up to the task called for by highly impactic activities such as oil and gas production. A reformed statute would address the full range of impacts identified in a sustainable-development­ oriented framework of environmental values. In terms of law reform, there has been no significant legislative reform by the civilian government. The President awarded a contract for the revised Laws of the Federation of Nigeria in 2004. This only reproduced the military decrees previously issued on the subject and, without any debate in 176 parliament, it was announced that there has been a successful review of Nigeria Laws. A perusal of the laws reveals that none of the critical provisions that could have actually reformed EIA practice and procedure in Nigeria were changed. It is indeed business as usual. These and other inept practices continue to encourage environmental degradation in the Niger Delta.

The Researcher himself can attest to the problematic nature of the EIA process in Nigeria. One specific event is particularly striking, involving a singularly flawed EIA review of a proposed oil production contract. The following is a general reproduction of a governmental hearing purporting to approve an EIA for the project:

ENCOUNTER Venue PTI Hotels and Accommodation Complex Niger Delta Warri. [Q: Date?]

Event Office of the President of the Federal Republic of Nigeria, EIA Panel Review of Nigerian Agip Okpai Facility Project in Ndokwa East Local Government Area Delta State Nigeria.

Chair Professor Okoli Good Morning. The EIS document is a good one, as the EIA Review Panel Government officials made me believe. Accordingly in the absence of any opposition the EIA Report is adopted as approved, met the EIA statute for the time being having enforced in Nigeria.

Representative Thank you chairman, distinguished officials of the of Agip Oil Co. Presidency. Nigerian Agip Oil Company is proud of our good working relations with the Federal Environmental Protection Agency now presiding at industry's request. We at NAOC will continue to cement this extraordinary relationship. We have food, drink and general entertainment; we have also booked for three days accommodation with the managers of the complex for all government and security personnel. Please, everything that will make your stay interesting has been paid for. Thank you for the approval.

Chair The decision of approval shall be so reflected in the record. 177

Researcher Good Morning Sir, all protocols observed. I have a comment. Chair Who are you and by the way are you part of us? Researcher Yes Sir, I am a Nigerian, a son of the Niger Delta, a lawyer, a researcher, and an environmental activist. I am concerned because the EIS document has not been circulated, the people are not even aware that this review is taking place here. Besides, the EIS document did not consider the type of technology NAOC will use in the cause of their activities. This document did not address social, economic, and biodiversity concerns likely to be impacted during drilling; it also did not address the cumulative impacts on the Niger Delta People and the physical environment. Look at page 52-56 of the draft EIS. It talks about Polar Bears. Please, this is sub-Saharan. They have just switched the cover of an EIS conducted in America and presented it for your unsuspecting approval. Chair Sir, you are from the Niger Delta. Think of your children's environmental future. You are also a retired Professor of Animal Science. Don't let them use you to destroy knowledge please. Chair Researcher, we can talk after the Honorable Minister for Environment's departure. He had to travel from Abuja to ensure that this review panel's proceedings end smoothly. OK? Researcher Chair Sir, I insist you do the right thing. You are Nigeria's first degree holder in taxonomy in 1952, from the famous University of London. Chair Researcher, how did you come to know me so well? In fact, since my graduation and return to Nigeria you are the first person to show my relevance to the environment. You must be a graduate of the University of London? Researcher No. Chair Of Oxford! Harvard or Cambridge or American trained? Researcher Yes Sir, American University Washington College of Law. Officer (CSO) Chair Sir, there has been a security breach at the gate because over 500 Students of Delta State University and Okpai Community people carrying placards and green leaves are marching to disrupt this meeting. I have called the General commanding the Military Task Force for reinforcement, to shoot at sight and arrest these stupid hooligans who call themselves environmentalists. Chair Tell the General not to shoot yet, my grand daughter is a law student. What is happening? 178

Researcher They are not violent. They want to be heard. Chair Researcher please go out and address them. CSO, tell the General not to arrest the environmentalists. OK. The decision is reversed and the proceedings adjourned indefinitely, to enable the contractors to NAOC to effect adequate changes.

In April 29 1999, upon the return of civilian democratic rule to Nigeria,

hopes for a participatory and qualitative EIA process were high, but by 2005, after six

excruciating years of civilian democratic rule, the reverse is the case. The EIA process is

now more than before infused with sharp practices that defy description. Suffice to say

that a number of factors explain this.

First and foremost is the president's unilateral annexation of the previously

separate federal agency (FEP A), without congressional approval. This action has

precluded that agency from making any reforms or improvements. Secondly, the EIA

process documents remain poor in quality (at best) and it appears that fraudulent practices

(such as the previously discussed "switching covers" episode) remain a substantial

possibility. Thirdly, the EIA process "public participation" requirement is thwarted

through devices such as having hearings held in clandestine locations at the instance of multinational oil and gas corporations. Fourthly, because important -stakeholders-the

Niger Delta indigenous people and the general public-are not participating, the EIA

process omits crucial information about the true environmental impacts of oil and gas production. The obvious result has a wholly flawed process and a policy of carte blanche with respect to abusive environmental practices in Niger Delta oil and gas activities. 179

United States

In the United States, the EIA process deserves the admiration and the

imitation it has engendered around the world. This said, however, even this advanced

system has its deficiencies. Indeed, critics often cite the following areas as needing

reform:

~ The current process is expensive and time consuming;

~ The scope and availability of remedies for NEPA violations should

be broadened;

Public access to the courts based on the EIA process should be

expanded;

Responsiveness on the part of upper-level governmental officials is

inadequate and should be strengthened. This, in tum would enhance

the capacity of agencies to carry out NEPA reviews.

The roles of the states and the private sector should be reconsidered

and restructured to increase their effectiveness in the process;

The CEQ should be elevated to full cabinet office status, in order to

elevate the EIA process in importance in the agency decision-making

process. Such an enhancement would strengthen overall governance in

critical, related areas such as natural disasters, homeland security, and

energy and space exploration.

While the aforementioned shortcomings limit EIA process effectiveness, in terms of positive and visionary EIA reform, the US has taken a significant step that 180

requires emulation. In April 2002, the CEQ established the NEPA Task Force, which

commenced work in May of the same year by investigating and researching the current

EIA process for the purpose of modernizing NEPA implementation. 302 The task force

literally covered all conceivable aspects of existing NEPA methodology, practice, and

procedures, including:

~ Programmatic analyses and tiring;

~ Adaptive management and monitoring;

~ Environmental assessments;

~ Technology and information management and security;

~ Federal and intergovernmental collaboration; and

~ Categorical exclusions.

Essentially, the review showed the efficacy of programmatic analyses and

tiering. Setting programmatic mitigation parameters at ecosystem, landscape, or regional

levels reduces the need to re-address these measures later at a site-specific level.

Adaptive Management and Monitoring ("AMM") is a systematic process for improving

management practices on a continual basis by learning from the outcome of actions over

time. In applying AMM, the agency monitors the effects of policies, plans, and actions

with respect to a project to gather information and make adjustments for future management. AMM is seen as an improvement over past evaluative approaches under

NEPA.

302 See generally THE NEPA TASK FORCE REPORT, REPORT To THE COUNCIL ON ENVIRONMENTAL QUALITY, MODERNIZING NEPA IMPLEMENTATION (2003). 181

Today's decision makers both in government and private sectors are sometimes pressured to take developmental decisions often without adequate information. This is especially true in the oil and gas exploitation business, known for its high degree of uncertainty and variability. In circumstances like this, the conventional

EIA approach of "predict-mitigate-implement" model proves grossly inadequate. But a careful shift in paradigm, such as "predict-mitigate-implement-monitor-adapt"303 model of AMM, may be useful.

The promise of adaptive management and monitoring is great but there are also challenges that need to be unraveled. For example "if NEPA-related adaptive management actions can occur at any time throughout a project, does the NEPA process for the proposed action originally reviewed by a court remain active? Similarly, do the activities associated with the adaptive management measures remain subject to environmental litigation?"304 These and numerous other questions remain to be answered in the future. Nonetheless, it is clear that important steps in the reform process have taken place.

303 WILLIAM M. COHEN, HOUSE AND CEQ TASK FORCES Focus ON NEPA 3 (2005).

304 Id. at 4. CHAPTER SIX

ENVIRONMENTAL ENFORCEMENT ISSUES IN NIGERIA

This chapter addresses weaknesses in the system of environmental enforcement in Nigeria. The discussion proceeds from the basic assumption that environmental law and policy are only as good as the system of compliance and enforcement accompanying them.

As discussed in chapters two, three, and four, environmental laws already exist in Nigeria dealing with oil and gas production. Unfortunately, these laws are insufficiently enforced, due to a number of important realities. To best present these realities, as well as recommendations for their solution, it is useful to first identify factors that encourage, and second, factors that discourage, environmental compliance.

A. Factors That Encourage Compliance

Most of the interviewees, as well as many experts, agree that current environmental laws in Nigeria provide a sufficient basis for achievement of much progress in environmental protection. In fact, these laws and certain other factors have served historically to encourage a certain degree of compliance with environmental law and policy. The factors are the following:

182 183

1. The desire to present a progressive, environmentally friendly image of the

corporation, accomplished with at least some measure of compliance

accompanied by appropriate media campaigns.

11. The desire to provide the corporation with economic efficiencies in

instances in which environmental compliance would produce them.

m. The desire to avoid potential liabilities and bad publicity in the future, in

the event enforcement might become a reality.

1v. Progressive attitudes about environmental stewardship on the part of top

corporate management. This includes the presence of progressive policies

and corporate codes of conduct.

v. In some instances, the government will impose compliance requirements

as a precondition to certain benefits, such as regional or international

borrowing or foreign aid.

vi. Wage-based incentives for corporate personnel, such as salary

enhancements and bonuses tied to environmental performance.

vu. The availability of appropriate and affordable technology.

B. Factors that Discourage Compliance

On the other hand, certain factors have been known to discourage compliance with environmental law: 184

i. Lack of knowledge, training, and skill on the part of corporate environmental

and health workers.

IL With respect to both government agencies and corporate departments, a

serious lack of funds, whether on an absolute basis or on a budgeted basis, to

support compliance.312

ni. The overall attitude and integrity of Nigerian environmental enforcement

officials. Expectations and solicitations of bribery have been said to be so

great that companies are known to allocate in the budget "miscellaneous

funds" to pay for approvals in government inspections.313

IV. The position of power and influence in Nigerian society on the part of top

management in multinational oil and gas corporations. Such status can inhibit

government officials in strict enforcement of environmental laws.

v. Abuse of power and control by majority ethnic groups. In their positions in

government and in other influential positions, members of these groups may

cause limits to environmental law enforcement as a political act of aggression

against minority groups.

vi. Lack of awareness and training on the part of government employees with

respect to environmental law and policy and practices.

VIL Lack of environmental policies or codes of conduct on the part of

multinational oil and gas corporations.

312 Interview with Ronsi Oguara, Shell Petroleum and Development Co., Env. & Safety Dept., at Ogunu Warri.

313 Id. 185

vni. Lacunas in the overall web of Nigerian environmental laws, which is sectoral

in nature and lacking in harmonization and coordination.

ix. Lack of transparency and accountability in environmental regulation and

oversight.

x. Lack of integrity in the governmental regulatory process, owing to the

improper nature of collaboration between government and the corporate

sector.

C. Enforcement by the Courts

In addition to enforcement measures undertaken by the government,

citizen initiatives also play an important role in environmental compliance. These citizen

suits typically involve both a transparency component and a liability component, with

remedies in the nature of injunctive relief, damages, and penalties.314 Elsewhere, such

suits are used by citizens and NGOs as both an accountability mechanism for

government programs and as part of their strategy to pressure private polluters or those

otherwise harming the environment.315 However, in Nigeria this mode of action must

surmount several formidable obstacles, including poverty, illiteracy, and the like.

314 See Universal Declaration of Human Rights, art. 19; International Covenant on Civil and Political Rights, art. 19; The European Convention, art. 10(1); American Convention, art. 13; See also African Charter on Human and Peoples Right, article 9; DUR WOOD ZAELKE, DONALD KANIARU, & EVA KRUZIKOV A, MAKING LAW WORK: ENVIRONMENT AL COMPLIANCE & SUSTAINABLE DEVELOPMENT VOL. 2 13 (2005); DAVID HUNTER, JAMES SALZMAN, & DUR WOOD ZAELKE, INTERNATIONAL ENVIRONMENTAL LA w AND POLICY 1316-17 (2d ed., Foundation Press 2002).

315 See supra note 314 and accompanying text. 186

As a practical matter, realization of citizen suit remedies cannot be achieved among indigenous people since the majority of the population lives below the poverty level. Most indigenous people live below one dollar a day.316 There is widespread unemployment and traditional means of livelihood have been negatively impacted by years of unsustainable oil and gas exploitation. In circumstances like this, fundamental rights enshrined in the constitution are nothing but meaningless jargon to all those who are living below or just at the poverty line.

It is a fair question whether the legal framework in Nigeria under the military and the present civilian regime has changed in any meaningful way. The situation is further aggravated by the collaboration agreements between the government and the corporations, with the result that the people do not share in or benefit from the proceeds of oil and gas exploitation. Citizens of the core Niger Delta are poor, illiterate, and are in a vicious circle of poverty and misery in the midst of wealth. There also exists the issue of the lack of an independent judiciary, legal aid, and ability to finance the costs of litigation (often, not even the costs of filing fees). The process of judicial enforcement of rights is also saddled with the limitations decreed by law.317 In addition to the above is an adversarial trial process predicated on a colonial evidentiary rule system. All these affect the ability of the indigenous people to seek and achieve redress in the courts.

316 UNITED NATIONS DEVELOPMENT PROGRAMME, REPORT ON HUMAN DEVELOPMENT (2004) available at http://hdr.undp.org/en/reports/global/hdr2004/ (last visited Apr. 15, 2009).

317 Limitation of Actions and Arbitration Law Act, (1976) Cap. 89, (Nigeria). In this law, section 4 provides that actions founded on simple contract or tort (including environmental suits) shall not be brought after the expiration of six years from the date on which the cause of action accrued. 187

Access to the Courts

There have been instances where indigenous people were physically

assaulted by military personnel in the offices of multinational oil and gas corporations

and government offices. Often this is during an attempt to demand compensation or

serve pretrial notices. The Nigerian adversarial legal system requires citizens to secure

the services of an attorney whose fees are unaffordable by the indigenous people. For

example, the average rate for an attorney's consultation fee is approximately US$35

(5,000 Naira) per case-an enormous amount for indigenous people that are barely

surviving.

Professional fees are negotiated between lawyer and client. On top of

these fees, the already exploited indigenous people are expected to pay approximately

0.5-1 % of the cost of their claim as filing or court fees at the Federal High Court.318 For

instance, if the claim is for US$200 million, the indigenous group filing the claim has to

pay $200,000 dollars in advance before the case can be processed. Usually,

compensation claims in land, resource, loss of habitat, and livelihoods are huge and

involve large sums running into the millions of dollars. These people certainly do not

have such money to pay for court filing fees and hence would likely be unable to fully pursue a court action. The trial process is protracted, and some cases have remained in court for up to five years on the average.

318 Fed. High Court Civ. P.R., 0.53, R. l 2d Schedule (2000) (Nigeria). 188

This predicament has made the Human Rights (Enforcement Procedure)

Rules of 1979, made by the Chief Justice of the Federation of Nigeria, attractive.

Perhaps because it is cheaper and by way of a motion ex parte. This is followed by a motion on notice, and all motions are supported by several affidavits-the main affidavit, affidavit of verification and urgency, a statement setting out the address of the applicant, the grounds upon which the relier s are sought, and the order or relief sought. The trial judge gives a ruling on the strength of affidavit evidence and not on a full trial on the merits. This procedure is best suited for declarative reliefs and is not the best for actual monetary compensation claims. It is also not the best option for any detailed specific performance or environmental compliance order that will allow a judge or court to direct a party over a given period of time with the chance to be briefed on compliance efforts through monitoring and enforcement.

On November 14, 2005, the Federal High Court sat at Benin in a rare and symbolic show of judicial activism. In the hallmark case of Jonah Gbemre v. Shell

Petroleum Development Co. Nigeria Ltd ,319 the plaintiffs were indigenous minorities of the Niger Delta who had been host communities to Shell for twenty-nine years. Shell, the operator of the join venture, had several oil wells, a flow station, and a gas flare furnace on the adjoining land. The communities had tried for years to stop the defendants from flaring gas but were unsuccessful because some local leaders (reportedly Shell contractors) were opposed to the citizen suit.

319 Jonah Gbemre v. Shell Petroluem Dev. Co. Nigeria Ltd. (unreported suit No. FHC/BCS/153/05) (Nigeria). 189

But in 2005, the plaintiff, with the assistance of environmental NGOs, overcame all obstacles and filed this suit. The court restrained Shell and the Nigerian

National Petroleum Corporation ("NNPC") from further flaring of gas in the Iwherekan

Community of Delta State. It also declared that the defendants' continuous gas flaring violated the plaintiffs fundamental human right to life, which includes the right to a clean, poison-free, pollution-free, and healthy environment. The court held that these actions specifically violated the copious provisions of sections 33(1), 34(1) of the

Nigerian Constitution, and articles 4, 16, and 24 of the African Charter on Human and

People's Rights of 2004.

The trial judge also held that sections 3(2)(a) and (b) of the Associated

Gas Re-Injection Act, Cap. A25 LFN, and section 14(3) of the Associated Gas Re­

Injection Regulations under which the continued flaring of gas is allowed, were inconsistent with article 1(3) of the Constitution and to that extent unconstitutional, null, and void. The court in its final declaration ordered the Attorney General of the

Federation and Minister of Justice to immediately set in motion, after due consultation with the Federal Executive Council, necessary steps toward the enactment of a Bill by the National Assembly for the speedy amendment of the Gas Re-Injection Act and

Regulations to quickly bring them in line with the Constitution.

Shell has indicated its desire to invoke its right of appeal over the decision. This decision is currently generating considerable euphoria in Nigeria and around the world. But the point needs be made that first, the judge deserves commendation for his courage and determination. Second, this order is not based on a 190 full trial with full evidential contest, and remains "a flash in the pan," considering the extent of environmental degradation in the Niger Delta. Third, there is the issue of judicial attitudes towards the environment and the Niger Delta ethnic minority in Nigeria.

Thus, if the Attorney General of the Federation appears personally in similar suits, would the current Judge's defiance become the general pattern ofresponse by the Nigerian judiciary to Niger Delta environmental degradation and related concerns?

Considering Nigeria's peculiar adversarial system of jurisprudence, can a court of law make an order compelling action by the other organs of government

(Executive and the Legislature) in respect to the constitutional functions within their exclusive discretion? The function of making laws is indisputably assigned to the legislature by virtue of article 4 of the Constitution. What if the legislature passes a law allowing gas flaring and it is signed into law by the President? A court's power in this regard would be limited only to its constitutional authority to interpret the laws.

In raising these procedural and substantive concerns, judicial powers need to be exercised judiciously and not in a capricious manner. However, notwithstanding the jurisprudential soundness of the latter view, the fact remains that the Nigerian

Supreme Court may be inclined to uphold unrestrained, unfettered decisions as not violating the doctrine of separation of powers or any other constitutional prohibition.320

It will be surprising if judicial radicalism is not soon considered reprehensible. It is also curious that the critical words in the Gas Re-Injection Act appear to provide for the exercise of considerable discretion, but it is the President who is the Minister of

320 Towoju v. Governor ofKwara [2005] 18 N.W.L.R. pt. 957 at 324 if F-G352 (Nigeria). 191

Petroleum and Natural Resources. Considering the outcomes of previous and similar

cases, the trial court's decision will likely be overturned or substantially altered on

appeal.

In addition to the above, there is also cause for concern in the fact that the

court ordered the executive arm of government to perform its constitutional function.

This is itself constitutionally questionable. And, this particular order was not specifically

based on a prayer for relief by the plaintiffs. In these circumstances, courts are bound by

their records and it is settled under Nigerian law that a court cannot grant relief not

specifically requested.321 The court can, however, grant some orders not claimed, but

this power is limited to orders that are ancillary by nature and that give effect to the judgment. Anything to the contrary is likely to be set aside by the appellate courts.

In the months and years ahead, the judicial process will take its course.

But considering previous experiences, particularly, controversial cases such as the Anima

Lawal, Sharia stoning death sentence case and State v. Ken Saro Wiwa, one cannot help

but be concerned about the likelihood of justice.

Notions of Compensation

Environmental compensation has received renewed interest in contemporary Nigeria, but it is not a new concept. It dates back to the earliest customary practices or usages. In the Niger Delta, customary environmental law posits atonement

321 Garuba v. Kwara Inv. Co. [2005] 5 N.W.L.R. pt. 917 at 160 if C-H 180 (Nigeria). 192 or restitution, a total or absolute replacement through deliberate and consorted acts aimed at restoring the environment. Under customary environmental law there was no time limit for restitution because it was a high spiritual event with Mother Nature, and this attitude in itself rendered environmental compensation not capable of a simple definition.

In modern legal theory, particularly under American jurisprudence,

"environmental injury," by its nature, can seldom be adequately remedied by money damages. In fact, it is often irreparable. 322 Thus there is justification for the jurisprudential reasoning that oil and gas activities, like other environmentally intrusive acts or omissions, are in many ways and respects environmentally disaster-prone.

Therefore, when it occurs, it is only fair that both the environment and the human victims obtain appropriate and adequate compensation for the damage occasioned by oil pollution. 323

As shown earlier in this dissertation, the effects of oil pollution on the

Niger Delta environment are devastating. It has been confirmed both internationally and domestically that even with (1) planning, design, and implementation of new oil and gas industry procedures, (2) personnel training, and (3) the development of advanced technology, accidents still occur periodically.324 In Nigerian jurisprudence, the above views are notorious.

322 Jonah Gbemre, (unreported suit No. FHC/B/CS/153/2005) (Nigeria).

323 OGBA U. NDUKWE, ELEMENTS OF NIGERIAN ENVIRONMENTAL LAWS, 142--43 (Univ. of Calabar Press 2000). 324 J. FININE FEKUMOR, OIL POLLUTION AND THE PROBLEMS OF COMPENSATION IN NIGERIA 6-14 (F&F Publishers Port Harcourt 2001). 193

In ChiefG.B. Tiebo Vii v. Shell Petroleum Development Co. ofNigeria,325 it was held that "[c ]rude oil spillage in the oil industry is a phenomenon that can never be completely averted." With this and numerous other cases as a background, it is imperative to ask: what then is compensation, or better still, how best can environmental law victims be compensated adequately under the rule of law in Nigeria? Professor J.

Finine Fekumor, suggests that:

[A]s a legal concept, compensation has its roots in law in the mediaeval era, but in relation to the modem nation states, compensation has its roots in cases of land law, particularly compulsory acquisition of land by the state. In this sense, it means the sum of money which is to be paid by a public body carrying out some authorized undertaking under statutory powers in respect of-

1. The compulsory acquisition of land, which is required for the purpose of the undertaking; [and]

1i. The injury resulting from the execution of the works to land, which is not required for the purpose of the undertaking. 326 The law of compensation forms part of the general law of remedies. The remedy consists not only of the payment of market value for damage or injury to crops, trees, buildings, and land, but it also applies t elements such as disturbance and injury arising from the works carried out on the land acquired.327

325 See ChiefG.B. Tiebo Vii v. Shell Petroleum Development Co. ofNigeria, (unreported suit No. YHC/14/88, Feb. 27, 1992). Note that the venue at issue is within the actual Niger Delta. Fekumor, supra note 324 (arguing that this view of the prevalence ofoil spills has been affirmed judicially in Nigeria); see also Kpeide v. Shell-BP Petroleum Dev. Co. Nigeria Ltd., M.W.S.J. 61, 88 (1973).

326 Fekumor, supra note 324 at 6-14.

327 See J.P.H. SOPER, ARBITATIONS AND AWARDS 132-33 (10th ed., Sweet & Maxwell 1978); see also Horn v. Sunderland Corp., (1941) 2 K.B. 26 (U.K.). 194

Article 44 of the Nigerian Constitution provides:

i. No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in a manner and for the purposes prescribed by a law that, among other things:

(a) Requires the prompt payment of compensation therefore;

At a glance, it is obvious that the Nigerian Constitution did not define or expressly use the words "adequate compensation." But the 1999 Nigerian Constitution, like its forerunner the 1979 Constitution, is American styled. To that extent, even though the Constitution has not used the words "adequate compensation," the use of the word

"compensation" connotes something equivalent in value to the property acquired.328 To this extent, recourse can be made to Anglo-American jurisprudence, legal theory and judicial precedent, and it is acceptable for Nigerian courts to treat American judicial precedent as persuasive.

Under the Fifth Amendment, just compensation connotes a fair "payment by the government for property it has taken under eminent domain-[usually] the property's fair market value, so that the owner is theoretically no worse off after the taking."329 Fair market value, on the other hand, means "the price that a seller is willing to accept and a buyer is willing to pay on the open market and in an arm's-length

328 C.J. ARAKA, LAW AND SOCIETY COMMENTARY in ALL NIGERIAN JUDGES CONFERENCE PAPERS 118-19 (Sweet & Maxwell 1983). 329 BLACK'S LAW DICTIONARY 122 (3d pock. ed., 2006). 195 transaction; the point at which supply and demand intersect."330 These central ideas have also been adopted judicially by Nigerian Courts. The Honorable Judge Atake, in the case of Esi v. Warri Divisional Town Planning Authority observed:

It is a matter within common experience that a willing seller in the market indeed may not and does not usually get the full market values: if he does get a fair market value he is quite contented and happy. I have no difficultly whatsoever in equating the "price paid by a willing buyer to a willing seller" with a fair market value. It is clear in my view that justice and reasonableness form the basis for determining what is adequate compensation. And a law that provides for a fair market value as a basis for determining compensation is clearly in my view just and reasonable.331

In India, the Supreme Court observed in Bengcil v. Bella Banerjee:

[A]lthough the word used in the Indian Constitution is "compensation" and not "adequate compensation" as contended, the use of the very word compensation was enough to show that the full market value was to be paid­ what is determined as payable must be compensation that is a Just equivalent of what the owner has been deprived of.33

Problems of Environmental Compensation and Litigation in Nigeria

330 Id at 754.

331 See Esi v. Warri Divisional Town Planning Auth., (unreported suit No. M/2/1966) (Nigeria); see also B.0. NWANBUZE, NIGERIAN LAND LAW 222, 228-29 (Nwamife Publishers Enugu 1972); J.A. UMEH, COMPULSORY ACQUISITION OF LAND AND COMPENSATION IN NIGERIAN 41-42 (Sweet & Maxwell 1973).

332 See Bengcil v. Bella Banerjee (1957) 1 A.LR. 170 (India); see also India v. Metal Corp., [1962] 1 A.LR. 639 (India) (adopting and following Bengcil v. Bella Banerjee). 196

As pointed out earlier in this dissertation, one fundamental problem of environmental governance is implementation. This problem is exacerbated by the lack of due diligence and transparency in the oil and gas industry. These are in essence compounded by several inhibitions that make environmental justice illusory, including:

>- The attitude of judges and the lack of an independent judiciary;

>- The issue of jurisdiction;

>- Inadequacy, or failure, of assessment of compensation;

>- Poor state of the body of environmental legislation.

It must be acknowledged that environmental law is a new field of specialization that calls for specialized legal education. It requires addressing scientific issues which need rationalization within the context of admissible evidence, based on probative value usually, dictated by the rules of each court. This calls for special interest, intelligence, training, conduct, and experience. Whereas it is easy to suggest that judges should lean towards environmental values, too often we forget to expose judges in environmental symposiums, conferences, and other educational events.

In spite of all the above and other positive functions that the Nigerian judiciary can fulfill in environmental governance, it is also acknowledged that the attitude of some judges is by any standard reprehensible. This is further aggravated by the fact that some Niger Delta indigenous minority people conspire with the great polluters to file false affidavits and evidence, all for stipends and patronage from the corporations and government. All these complicate the environmental justice process.

Further, it contrasts starkly with the legal language used to declare the peoples' right to a 197 healthy, sustainable environment. Article 20 of the Nigerian Constitution provides that

"[t]he State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria."

In reality, the above is indeed stifled beyond enforcement by the superior constitutional provisions contained in Section 6(6)(c) and (d):

6( 6) The judicial powers vested in accordance with the foregoing provisions: (c) shall not except otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution; (d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.

These provisos effectually ousted the jurisdictional competence of courts to enforce Section 20 of the Constitution, the statutory beacon of environmental law.

Note, however, that the above contradictory provisions, notwithstanding, Nigerian judges need to interpret breadth into Section 20 and embark on the real actualization of environmental rights, particularly in environmental pollution matters.

Court Jurisdiction 198

In contemporary Nigerian jurisprudence, jurisdiction is sacrosanct,

because it is the basis of a court entertaining or refusing a suit. 333 In environmental law

and policy, as in any other area, jurisdiction is obviously critical to enforcement. But

because of the majority ethnic groups' attitudes toward the Niger Delta indigenous

minority peoples, majority ethnic members sitting as judges may construe the advocacy

of such environmental suits as a threat and rule against them at the threshold level of jurisdiction. The result is that the government is protected and environmental injury goes

unaddressed. Note that the Constitution provides as follows:

The law making business of the National Assembly shall be conducted in English, and in the majority languages in Hausa, Igbo, and Yoruba when adequate arrangements have been made therefore.334

While it may not be apparent to some, a Constitutional provision of this

sort sends a powerful message of discriminatory preference, on the one hand, and rejection, on the other hand. Against the historical backdrop of ethnic strife and discord

in Nigeria, the explicit reference to the majority languages creates the impression that the nation's fundamental Constitutional document is dedicated to the rights, liberties, and freedoms of some but not others. It is as if the minority peoples of the Niger Delta were either forgotten or ignored. Another example is that the Nigeria Constitution also provides that notwithstanding anything to the contrary, and in addition to such other jurisdiction as maybe conferred upon it by an Act of the National Assembly, the Federal

333 Madukulu v. Nkemdi/im [1962] 1 A.N.L.R. 581 (Nigeria).

334 CONSTITUTION, Art. 55 (1999) (Nigeria) (emphasis added). 199

High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:

(a) Relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party; (b) Mines and minerals (including oilfields, oil mining, geological survey, and natural gas).

The Nigerian Judiciary has interpreted these seemingly novel "ouster clauses" against the dictates of environmental sustainability. For example, in Shell

Petroleum Development Co. Nigeria Ltd v. Maxon, 335 and Shell Petroleum Development

Co. v. HB. Fisherman, 336 the plaintiffs/respondents challenged environmental pollution which damaged crops, land, and primary forest by way of oil spillage. The defendants/appellants' counsel instituted the suit in the State High Court by virtue of the

Constitutional provision that:

i. Subject to the provision of section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any penalty or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person. 337

335 Compare Shell Petroleum Dev. Co. Nigeria Ltd. v. Maxon [2001] 9 N.W.L.R. pt.719, 541- 45 (Nigeria) with Fekumor, supra note 324, at 8.

336 Compare Shell Petroleum Dev. Co. v. HB. Fisherman [2002] 4 N.W.L.R. pt. 758, 505 (Nigeria) with AMOKA YE G. OLUDA YO, ENVIRONMENTAL LA w AND PRACTICE IN NIGERIAN 512 (Univ. of Lagos Press 2004). 200

The defendants objected to the suit by preliminary objection. The High

Court upheld the objection on the constitutional ground that a State High Court (which is of close proximity to most environmental victims of the core Niger Delta) does not have jurisdiction to entertain or hear cases concerning any act or omission pertaining to mines and minerals (including oil fields, oil minerals, geological surveys, and other hydrocarbons-natural gas). This decision was upheld by the Court of Appeals. The

Nigerian Supreme Court affirmed the ouster clause in the hallmark case of Shell

Petroleum Development Co. ofNigeria Ltd. v. Abel /saiah337 where Uthman Mohammed,

J.S.C., in his lead Judgment, stated copiously that:

The holder of an oil pipeline license has been made responsible under the law to pay compensation to any person whose land [sic] or interest in land or who suffers any damage in connection with the operation of the pipeline. For the foregoing reasons the construction, operation, and maintenance of oil and oil pipelines by a holder of an oil prospecting license is an act pertaining to mining operations. It is clear from the pleadings that the spillage and pollution occurred when the appellant was trying to repair the indented pipeline by cutting off the said section and installing a new section. I think it cannot be disputed if I say that installation of Petroleum Mining Operations. Therefore if an incident happens during the transmission of petroleum to the storage tanks it can be explained as having arisen from or connected with or pertaining to mines, and minerals, including oil fields, and oil mining. I therefore agree that the subject matter of the respondent's claim falls within the exclusive jurisdiction of the Federal High Court as is provided under section 230(1)(a) of the Constitution (Suspension and Modification) Decree No. 107, Similar opinions

337 CONSTITUTION, Art. 272 (Nigeria). 337 Shell Petroleum Dev. Co. ofNigeria v. Abel Isaiah, [1997] 6 N.W.L.R. pt. 508, 236 (Nigeria). 201

concerning claims pertaining to oil spillages have been held by the Courts of Appeal in Barry and 2 Ors. v. Obi A. Eric and Ors. (1998) 8 N.W.L.R. (Pt. 562) 404 at 416 and The Shell Petroleum Development Company of Nigerian Limited v. Otelemaba Maxon & Ors. [2001] F.W.L.R. 1 (part 47) 1030 ... it was decided on 20 h January 2001 by Port Harcourt Division of the Court of Appeal. Once the jurisdiction of a court to determine a matter has been ousted any further hearing in the matter is indeed null and void because any decision it makes amounts to nothing.

In his concurring judgment, Ogwuegbu, J.S.C. was emphatic on the issue:

"I should also say that section 7(5) of Decree No. 60of1991 ousted the jurisdiction conferred on State High Courts and Magistrate Courts under section 19 and 20 of Oil

Pipeline Act Cap. 338 Laws of the Federation of Nigerian, 1990. As a result, State High

Courts and Magistrate Courts have no jurisdiction whatsoever in any matter under section 7(1) and (2) of Decree No. 60of1991." This, according to J. Finine Fekumor, is what could be referred to as "an atomic bomb on the issue of jurisdiction of court on oil and gas operation."

It can be said of the jurisdiction of Nigerian Courts, or the judicial enforcement of environmental law and policy in Nigeria, that the Niger Delta indigenous minority people have been denied access to the courts including their age-long customary environmental law remedies. All these and other ineffective rule-based remedies have exacerbated the problem of environmental justice in Nigeria. It is against these pathetic circumstances that one is compelled to wonder if this will not push the largely illiterate population into further acts of rebellion and freedom through self-help, with catastrophic effects on Nigeria, the Niger Delta people, and the environment. 202

Commenting on the overall decadence of the Nigerian legal framework both jurists and judges acknowledge its inadequacy. In the words of Justice Oputa,

Justice of the Supreme Court of Nigeria:

Access to the courts is a necessary adjunct of the Rules of Law and the effectuation of his rights by the citizens. It underlines and emphasizes that justice should not be the privilege of the few who are rich but should be accessible to all the citizens of our country. But access to the courts implies the payment of summons fees, lawyer's fees, and payment for record of proceedings in the case of appeal. All these are far beyond the reach of the poor, who finding justice too expensive, gladly resign themselves to the denial of it. One of the best tests of the efficacy of the fundamental rights provisions of our Constitution should be whether the rights enshrined therein are accorded to the poor. In theory, Nigeria's Constitution in its preamble talks nobly of promoting the good government and welfare of all persons in our country on the principles of freedom, equality, and justice; but in actual practice, one will notice that it is the powerful, the rich, dominant, and the elite class that seem to have all the rights, while the only right left to the poor, the weak, and the down-trodden seem to be their rights to suffer in silence.338

Also commenting on the critical nature of the Nigerian legal framework, the eminent jurist Dr. Aguda asked, in effect: What fair hearing can a poor person hope to have when he cannot even boast of a square meal a day, ifhe is cheated of his right, he would certainly prefer having the matter in the hands of God than risk death to assert an illusionary right to fair hearing of his grievance by the courts. To think that a very poor person of indigenous Niger Delta origin can have a meaningful day in court in the pursuit

338 J. NNAMDI ADULA, PERSPECTIVES ON HUMAN RIGHTS: HUMAN RIGHTS AND SOCIAL JUSTICE IN NIGERIA: ISSUES, DILEMMAS, AND OPINIONS 231 (Federal Ministry of Justice 1991 ). 203 of his or her environmental human right, real or imaginary, is to live in a fool's paradise. 339

339 Id. at 230. APPENDICES: APPENDIX 1

NAMES OF ANCIENT KINGDOMS LIST OF KEY TOWNSNILLAGES AND CLANS I. MEIN CLAN 1. Ogobiri [Traditional Head Quarters] 2. Kabe-ama 3. Tuboro-Agoro 4. Okumbiri 5. Dagana-gbenes 6. Kpakiama 7. Bomadi 8. Es ama 9. Ogiriagbene 10. Kalafuegbene 11. Ogbein-Ama 12. Akugbene 13. Okoloba 14. Ogodobiri 15. Ezebiri 16. Bikorogha 17. Kiagbodu 18. Ogbein-gbene 19. Ogbodobiri 20. Egodor 21. Oru Agbodo 22. Ofonibengha 23. (Okrika) 24. Ayakoromor 25. Gbekebor 26. Newtown 27. Ebeigbene 28. Oyangbene 29. Akparumogbene 30. Seimor-gbene 31. Bilabiri 32. Eri-ama 33. Agoro-gbene 34. Kiama 35. Odi 36. Isampou 37. Kalama etc.

204 205

2.0POROMOR 1. Oporomor Town Traditional Headqarter 2. Amabulou 3. Norgbene 4. Tamaugbene 5. F outoru-gbene 6. Obrigbene 7. Amana-gbene 8. Ekeremor 9. Owei-gbene 10. Ojobo 11. Bulou-Ojobo 12. Akuyugbene 13. Benisedegbene 14. Oswoupelegbe 15. Omutorgbene 16. Awu- 17. Tamubolougbene 18. Ogunlele- 19. Benateigbene 20. Ndoro 21. Buluo Ndoro 22. Pere Torugbene 23. Isaba 24. Ogbe-Ijoh Warri 25. Ekogbene 26. Eberegbene 27. Ebeberegbene 28. Ekumu-gbene 29. Abadi-ama 30. Angiama 31. Orugbene 32. Bulou 33. Akede 34. Opuama 35. Eniware 36. Kiro koro-sei 37. Aguobiri 206

3. TUOMO CLAN 1. Tuomo Toro-Aghoro [Traditional Headquarter]. 2. Ogbobagbene 3. Ogboba zion 4. Oputamor 5. Odou bou 6. Tebegbe 7. Bulou Tebegbe 8. Tamigbe 9. Bulou Tamigbe 10. Torugbene 11. Triniti Zion 12. Isrealo Zion (Samilogbene) 13. D S Zion 14. Arugbo 15. Ajapa 16. Biagbiri 17. Gbodogbini 18. Ukpara-ama 19. Adole-seimor 20. Abediego 21. Gbajunejoh-ghini 22. Yangbini 23. Arogbo Zion 24. Akpata 25. Okanminiwei-ghini 26. Kurukrugbini 27. Agbedigbama 28. Ojudo-Ama 29. Lalatiye

4. OYIAKIRI 1. Alaibiri [Traditional Head Quarter] 2. Angala Oweigbene 3. Lalagbene 4. Odoni 5. Adiegbene 6. Adagbabiri 7. Kunou 8. Ebeni 9. Aladja 207

5.KABOU 1. Kabou (Patani) 2. Aven 3. Koloware 4. Abare 5. Otorofani 6. Adagbabiri 7. Asemabiri 8. Elemebiri 9. Samabiri 10. Agolomor 11. Angia ama 12. Apele biri 13. Bulou Apelebiri 14. Tungbo 6. TARAKIRI 1. Orua [Traditional Head Quarters] 2. Bulou Orua 3. Ebe debiri 4. Angalabiri 5. Ofini 6. Adoubu 7. Odorubo 8. Uduophori 9. Ayamansa 10. Isampou 11. Ogbia 12. Oloibiri 13. Imiringi 14. Oruma 15. Emakalakala 16. Ofuo-kpoti 17. Ayinma-Angalabiri 18. Ayakoro 19. Egbema-Angalabiri 20. Ukubie 21. Furapa 22. Ogbeinbiri 23. Loubia 24. Ezetu 25. Ekeni 26. Gbaraun 27. Okparu-tubo 28. Azagbene 208

7. SEINBIRI 1. Oboro [TraditionalHeadquarters] 2. Okpokunu 3. Enekorogha 4. Edegbene 5. Opuru-diagbene 6. Pamor-2:bene 7. Deibiri 8. Batan 8.0GBEIN 1. Amatolo Traditional Headquarters 2. Owei korogha 3. Otuan 4. Amasuoma 9. IDWINI 1. Amatu Traditional Headquarters 2. Aghoro 3. Agge 4. Amazor 5. Orobiri 6. Ogbotubu 7. Letugbene 8. Besangbene 9. Kandanghan 10. Odimodi 11. Oforgbene (Ezon Burutu) 12. Burutu 13. Forcados 14. Azoteta 15. Bilabiri 16. Egbema-Angalabiri 17. Agedi-Zion 18. Ogulagha 19. Obotobo 20. Sokebulou 21. Osain 22. Yeye 23. Beniboye 24. Isaiyegbene 25. Boutubo 26. Okia 209

APPENDIX2

CALENDAR OF EVENTS IN THE CORE NIGER DELTA (UAW AREA)

700 B.C. Legend has it that Ezon (lzon) the progenitor of the core Niger Delta migrated from Ethiopia to Southern Sudan Dafour from where he discovered the West African forest and eventually Nigeria. As the earliest humans, without let or hindrance. Ezon is believed to have been accompanied in this journey by 21 of his close siblings

1700 The 9th dynasty came to an end because of a major plague (kunde)

1725 The last otuogbodu visitors were received at Adagba Ekere the ceremony (Ogei)was performed by Oyateigha

1730 Toru Aghoro (Tuomo) became the first town to settle in Bulou Toru Creek.

1732 Adagba (Ojobo) settled in Bulou Toru Creek.

1757 Oputamu and Odou natural lakes were discovered by Bidei the visiting aunt of Are-fama-ere

1809 Agbere/Kpakiama inter-village war first recorded environmental conflict after the era of dynasties.

1815 The great environmental warrior Seimieyeseigha of Angalabiri died

1816 Famine (Sai-muon ),it is generally believed that this environmental disaster lasted 21 years that is till 183 5 It was during this period the first set of Europeans arrived Forcados and started the use of corporal punishment and force against free natives as laborers.

183 7 5 out of the 9 biological children of Ebe the ruler of the 9th dynasty met at Gbaran toru and organized a general wake for their lost relations

1842 The first organized group dance tour began.

1861 The British took over control of Lagos.

1867 British gun boat attacked Agbere

1876 Her Majesty's gun-boat carried out the second Agbere expedition. This time moving innocent children to un known destinations till date 210

1878 Forcados was made the colonial administrative/judicial Headquarters.

1881 Bristish signed treaties with Abare, Torofani and Adagbabiri

1881 British gun boats attacked Odi

1884 British signed Treaties with Angiama, Sagbama, Patani, Agbere and Odoni Oma , Ekperiware Pa Orubebe Okuboekpadegha the first warrant chief in attendance as the British monarchs native overseer.

1888 Her Majesty's Officer signed Treaties with Izon Oborotu (Ofougbene - Burutu as owners of all the land including Ogulagha with Odumodi and Gbekubo as natural boundaries)

1888 Chartered British Company established trading post at Agbere

1894 U.A.C. Niger Company established at Burutu

1894 A French Lieutenant, Hazon who was attacked near Patani died

1894 Right Reverend Edgar W. Mathias a Britich national died and was buried at Izon Boroutu Land (Ogulagha)

1895 The Royal Niger Company handed over operations to The Niger River Transport Burutu

1896 The Royal Niger Company attacked Ayakoromo Mein.

1896 December Ogodobiri and Ayakoromo communial war broke out on the suspicion that Ogodobiri warriors showed the British the route

1896 The Royal Niger Company signed Land Deed with Okrika

1899 Emieyeke was mudered by Gbanagha in Peretorugbene

1900 Royal Niger Company handed over to the Government

1900 Elder dempster Line established at Forcados

1902 Bomadi/Ayamassa War over natural/environmental resources

1904 Tuomo/ Ayamasa war

1904 Old marine department (Inland Waterways) moved from Akassa to Forcados. 211

1906 John Holt Ship wreak at Okpokunou

1909 The British District officer insulted the Chiefs of ljaw Country directing that he has taken over tax collection directly

1910 Captain James "Commissioner"-A District Officer died at Adagbabiri after attempting to enforce colonial tax law. The helper in the boat Late Pa. Brisibe Adamagu survived.

1911 Federal headquarters shifted from Forcados to Lagos

1915 Asigo Dance took place

1917 Kpadia (Environmental priest) of Tarkiri Clan died

1918 Ekparemo dun, (The great plague).

1920 Small pox epidemic

1920 Oboro/Okpokunou land case

1921 First lauch owned by chief Bekederomo in use

1922 Clifford's constitutional reform agenda and policy framework announced

1923 Great Burutu Royal Niger Company fire disaster

1925 Denmo aremo globe (Great Eclipse of the sun)

1925 Prince of Wales visited Nigeria but was prevented from meeting the ljaw Chiefs and Kings

1927 Eraibuwa mon (Famine)

1928 Gumbra/ Gbokosi first Environmental Dance displayed

1927 First German Bitimen company started oil Exploration activities in the Niger Delta.

1933 Akpere kime (Great storm and 7 days rain)

1939 The British divided the southern protectorate into Eastern and Western Regions. The Ijaws were divided and became politically Marginalized

1944 Pena Otu Ebe mo ebemo Sou (second world war). 212

1944 The British started constitutional allocation in Nigeria, The Sir Philipson's commission recommended 50% state of origin, 30% Federal and 20% to all tiers of government

1945 Tara Owei Sunoma Osuo (The great rain and storm that lasted 21 days).

1947 Eclipse of the Sun

1950 Creation of colonial Town Planning Authority in ljaw Country.

1950 Regulation of timber Revenue collection in the whole western ljaw division.

1951 First Regional election

1952 Transfer of divisional headquarters from Forcados to Bomadi.

1952 First meeting of new regional Houses

1952 Conflagration occurred at Peretorugbene

1952 Chief Anugbare of Ogobiri died.

1952 First visit of Honourable Chief obafemi Awolowo to Bomadi

1953 Canoe licensing in Western ljaw organized

1954 B & B (Brisibe and Bosimo) Transport Service Formed

1954 The highest flood ever in western ljaw

1955 Oki's transport service started in Western ljaw

1955 Establishment of Western ljaw market Women Association headed by Madam Shaka Bisomo

1955 Sir. Jame Roberston's visited Burutu

1955 Registration of Birth

1956 Western ljaw First T.T. Collage opened in Bomadi

1956 Conflagration occurred at Aleibiri

1956 First oil well of commercial value discovered at Oloibiri Niger Delta ljaw 213

Country by Shell B.P

1957 Go-show sickness (Flue)

1957 Second London Conference

1957 Self-Government for Western Region

1958 Olu of itsekiri's friendly visit to Burutu

1958 Adelabu Riots.

1959 V.H.F installed at Bomadi and Patani

1959 Second Federal Elections.

1959 New 5, 1, 10/-, 5/- currency notes promulgated

1959 Niger Delta Congress (N.D.C.) inaugurated

1959 U.A.C. trade closed at Forcados

1959 First Telegram machine installed in Western Ijaw Bomadi

1960 American undergraduates on operation cross-road

1960 Project visited Western Ijaw based at Akugbene.

1960 Niger Delta Development Board formed

1960 Old marine department moved from Forcados to Warri

1960 Saint Brendan's College, Western Ijaw Opened at Bomadi

1960 Nigerian Independence

1961 Western Ijaw divisional council dissolved and Spilt to 3 district councils namely, the North, Central and the Southern council.

1962 Emergency in Western Region of Nigeria

1962 Death of Honorable Chief Ariworiyei at Ogobiri

1966 First Military coup in Nigeria.

1968 Nigerian Biafra civilian war. 214

1970 Major Jaspa Isaac Boro the revolutionary leader of the Ijaws of the core Niger Delta was assassinated.

197 5 2nd Militaryu coup in Nigeria that led to the detronant of General Y ak:ubu Gowon, and Gen. Mutala Ramat Mohamed was proclaimed Head of state.

1975 General Mohamed was assassinated and General Olusegun Obasanjo was proclaimed Military Head of state.

APPENDIX3

LIST OF CLAN I TRADITIONAL OFFICIALS INTERVIEWED

CLAN NAME OF INFORMANT INFORMANT'S TITLE 1. Tuomo HRM Ongulu, Era-arou Pere (King) (Location) Wakere, Flawereowei, Era-arou Alaowei Alaowei Fungeiowei Abere, Peregbolu(s) Fiawareaowie Alaowei Disi Alaowei Ekeminghan.Alaowei David Alaowei Ebikeme, Odugwu Omoso Alaowei Odus Oyere, Kaiza Musaka Egrenbide 2. Mein Okokolo Carter Alaowei Sub- (Location)

3. Oporomor HRM pere Ekere. Torukro Egede Okosuogwei Zaria Etaye Omgbe Meeting (Location) Amananaowei T arnaramieyefa Ebe Bebearewei Alaowei

4. Oyiakiri Ebebi , Joseph Alei of Aleibiri (sub Tekeme, Akpenzigha Location)

5. Kabo HRM Erebulu, Pere (King) (Location) Alaowei Dakromor F. 0 Abare

6. Tarakiri Pereware Ogeiteimowei Edoja Alaowei (Location) Alaowei

7. Seimbiri Prince Konboye Alaowei (Location)

8. Ogbein Miebi Ozotali, Gbesine Azor (Location)

9. Idwini HRM Asaba Gilbert Dose (Location) Jimmy Bak:awei 1 Location 215

APPENDIX4

PROFILE OF SURVEY INTERVIEWEES

Statistics of Marriage I Education I (combines all Towns in sample)

TUOMOCLAN:

Total number of interviewees: 78

Sex: Female interviewees: 45

Male interviewees: 33

Marital status:

Single 16 Married 31 Widowed 19 Divorced/separated 12 Total 78

Persons that have been affected by oil spillage

Victims of oil spillage 73 Got compensation 5 Total 78

* 15 widowed women, and three widowed men all had been in customary Polygamous marriage, attributed their widowhood to extra judicial killings related to oil and gas operations.

Level of Education

College Graduates 9 Completed High School 15 Drop Outs 34 Never Attended School 20 TOTAL 78 216

APPENDIX 4 cont'd

PROFILE OF SURVEY INTERVIEWEES BY CLAN

MEIN CLAN

Total number of interviewees: 91

Sex:

Female interviewees: 57

Male interviewees: 34

Marital status:

Single 48 Married 31 Widowed 12* Divorced/separated Total 91

Persons that have been affected by oil spillage

Victims of oil spillage 86 Got compensation 5 Total 91

* 9 widowed women; 2 had been in a monogamous customary marriage and the other 7 in polygamous customary marriage, 5 claimed they lost their husbands as a result of extra judicial killings related to the oil and gas corporations' activities. 2 widowed men all had been in customary monogamous marriages attributed their widowhood to extra judicial killings related to an unprovoked attack by military personnel attached to oil and gas corporations.

Level of Education

College Graduates 6 Completed High School 26 Drop Outs 52 Never Attended School 7 Total 91 217

APPENDIX 3 continued

PROFILE OF SURVEY INTERVIEWEES BY CLAN

OPOROMOR CLAN

Total number of interviewees: 73

Sex:

Female interviewees: 51

Male interviewees: 22

Marital status:

Single 14 Married 16 Widowed 23* Divorced/separated 20 Total 73

Persons that have been affected by oil spillage

Victims of oil spillage 62 Got compensation 11 Total 73

* Out of 23 widows 14 claimed to have lost companionship in circumstances directly attributable to extra judicial killings in the course of oil and gas corporations activities. * 6 widowed women are currently in customary law inheritance marriage; 3 declined the question about the cause of death of their spouse. 1 man claimed to have lost his wife to HIV/AIDS contracted through an oil and gas worker.

Level of Education

College Graduates 15 Completed High School 28 Drop Outs 20 Never Attended School 10 Total 73 218

APPENDIX 4 continued

PROFILE OF SURVEY INTERVIEWEES BY CLAN

OYIAKIRI CLAN

Total number of people interviewed: 67

Sex: Female interviewees: 41

Male interviewees: 26

Marital status:

Single 28 Married 15 Widowed 15* Divorced/separated 9 (M. 2 & F. 7) Total 67

Persons that have been affected by oil spillage

Victims of oil spillage 64 Got compensation 3 Total 67

* 15 widowed women; 2 had been in a monogamous customary marriage and the other 13 in polygamous customary marriage out of 11 claimed their lost of companionship was as a result of extra judicial killings by military task force personnel attached an oil and gas corporation.* While the 2 widowed men claimed they lost their wives to oil spillage clean up activities by a contractor.

Level of Education

College Graduates 10 Completed High School 25 Drop Outs 28 Never Attended School 4 Total 67 219

APPENDIX 4 continued

PROFILE OF SURVEY INTERVIEWEES BY CLAN

KABOWEI CLAN

Total number of people interviewed: 81

Sex:

Female interviewees: 53

Male interviewees: 28

Marital status:

Single 35 Married 23 Widowed 6* Divorced/separated 17 Total 81

Persons that have been affected by oil spillage Victims of oil spillage 52 Got compensation Nil Total 52

* Out of 6 widows 4 claimed to have lost companionship in circumstances directly attributable to extra judicial killings in the course of oil sabotage activities.

Level of Education

College Graduates 3 Completed High School 22 Drop Outs 32 Never Attended School 24 Total 81 220

APPENDIX 4 continued

PROFILE OF SURVEY INTERVIEWEES BY CLAN

T ARAKIRI CLAN

Total number of interviewees: 111

Sex:

Female interviewees: 62

Male interviewees: 49

Marital status:

Single 13 Married 16 Widowed 21* Divorced/separated 61 Total 111

Persons that have been affected by oil spillage

Victims of oil spillage 63 Got compensation Nil Total 63

13 widowed women had been in customary polygamous marriage; and I had been in customary monogamous marriage all attributed the death of their spouse to extra judicial killings related to the oil and gas activities declined comment. All 13 widows claimed their spouses were murdered in and around oil and gas facilities in Ogulagha, Ojobo Beniseide, Odidi, Ezetu, Fish Town and Sangana.

Level of Education

College Graduates 13 Completed High School 41 Drop Outs 35 Never Attended School 22 Total 111 221

APPENDIX 4 continued

PROFILE OF SURVEY INTERVIEWEES BY CLAN

SEIMBIRI CLAN

Total number interviewees: 90

Sex: Female interviewees: 55

Male interviewees: 35

Martial status:

Single 23 Married 27 Widowed 21 * Divorced/separated 19

Persons that have been affected by oil spillage

Victims of oil spillage 87 Got compensation 3 Total 90

Out of 21 widowed women; 20 had been in customary polygamous marriages and 1 had been in statutory monogamous marriage. 17 widows attributed their widowhood to the activities of oil and gas operations, 2 HIVI AIDS related and 1 declined while the other 1 drowned.

Level of Education

College Graduates 15 Completed High School 33 Drop Outs 22 Never Attended School 20 Total 90

APPENDIX 4 continued 222

PROFILE OF SURVEY INTERVIEWEES BY CLAN

OGBEINCLAN

Total number of people interviewed: 93

Sex: Female interviewees: 62

Male interviewees: 31

Marital status:

Single 29 Married 15 Widowed 18* Divorced/separated 31 Total 93

Persons that have been affected by oil spillage

Victims of oil spillage 87 Got compensation 6 Total 93

*Out of 18 widowed women; I had been in a monogamous customary marriage and the others in a polygamous customary marriage 13 attributed their personal loss to the activities of the oil and gas corporations, while 4 declined to comment.

Level of Education

College Graduates 5 Completed High School 25 Drop Outs 46 Never Attended School 17 Total 93

APPENDIX 4 continued 223

PROFILE OF SURVEY INTERVIEWEES BY CLAN

IDUWINI

Total number of interviewees: 112

Sex:

Female interviewees: 74

Male interviewees: 38

Marital status:

Single 35 Married 3 Widowed 11 * Divorced/separated 63 Total 112

Persons that have been affected by oil spillage

Victims of oil spillage 109 Got compensation 3 Total 112

* 11 widowed women; 2 had been in a monogamous customary marriage and the other 9 in a polygamous customary marriage out of 7 claimed their loss of companionship was as a result of extra judicial killings related to the oil and gas corporations.

Level of Education

College Graduates 15 Completed High School 36 Drop Outs 40 Never Attended School 21 Total 112

APPENDIX5 224

Sample SJD Questionnaire

AMERICAN UNIVERSITY WASHING TON COLLEGE OF LAW INTERNATIONAL LEGAL STUDIES PROGRAM 4801 MASSACHUSETTS AVENUE, NW WASHINGTON, DC 20016

Dear Honorable Justice I Chief I Prince I Sir I Madam, ~~~~~~~~~~

The bearer is a candidate for the Doctor of Laws - S.J.D program currently with the University. The University and Doctoral Academic Dissertation Committee approved research topic is "The International Environmental/Legal Implications of Oil and Gas Exploitation in the Niger Delta of Nigeria"

In keeping with the university's high educational research standard in terminal degrees, particularly law, it is my belief that your honest and unbiased response to this research questionnaire I interview schedule would enhance the fact based aspects of this academic research.

The objective and purpose of this Doctoral Research is to document the true nature of the problem, put it in proper legal perspective and proffer enduring solutions that could address the vexed environmental cum legal aspects of the Niger Delta Indigenous Peoples' I Minority question in Nigeria and the International Committee of Nations. It is against these backgrounds the Washington College of Law, International Legal Studies Program request that you endeavor to carefully respond to the questions following the self-explanatory instruction. Please note that information volunteered (oral, documentary, etc.) shall be treated with utmost confidentiality.

Finally, as you may be aware Doctoral Researchers undertaking field research like this are usually at advance stages of their dissertation after comprehensive /residency, usually with time constraints and it shall be appreciated if effort is made to accommodate the researchers busy time schedule.

Yours faithfully,

Professor Daniel Bradlow Professor Perry Wallace Director (ILSP) Chairman (S.J.D) Thesis Committee

Name of Researcher Orubebe Bibo bra Bello. Please write legibly and were necessary use the reverse side of the page or any plain paper for additional comments. 225

1. Name:

2. What Organization /Department /Corporation do you work for: ......

3. What is your official designation/rank/title: ......

4. Gender: (i) Male [ ] (ii) Female [ ] 5. What kind of project or work are you involved in?:

6. What connects you to the Niger Delta Region:

7. What Area/Territory do you consider as The Niger Delta Area of Nigeria known to the intemationalcommutity? ...... 226

8. Comment on the governments view of the Area: ......

9. Do you think there is a problem of definition?: ......

...... if your answer is yes Comment on why?: ......

10. Did the Niger Delta question predate Nigeria?:

...... if your answer is yes. How did the colonial Authority deal with it?: ......

...... is there any colonial authority law/regulation or policy on the exact area you refer to as the Niger Delta Area?:

...... Do you think the Niger Delta is in Crisis? Yes [ ] or No [ ] 1 la. If yes, comment on the root causes of the crisis. 227

11 b. Is the Niger Delta Crisis linked to environmental degradation I pollution?: ......

11. Whose activities create the environmental degradation/ pollution?:

12. To what extent is the government involved in the activities of multi national oil and gas corporations operating m the region?:

13. Do you think there is collaboration between the Government of Nigeria and the Multi national oil and gas Corporations operating in the Niger Delta Area? (i) Yes []or (ii) No [ ]. If your answer is yes comment briefly on the specific areas you think this co-operation exist? 228

14. Do you think the government is doing enough to address the Niger Delta people's environment induced problems?

...... is climate change, terrorism and sabotage part of the problem ?

15. If your answer is NO Please identify the specific aspects you consider critical: - (i) Constitutional/Legal, [ ] (ii) Environmental Degradation and land use [ ], (iii) Underdevelopment [ ], (iv) Militarization and extra judicial killings [ ], (v) Official Corruption [ ], (vi) Lack of political will by the federal government of Nigeria [ ], (vii) Negative activities of multinational oil and gas corporations operating in the Niger Delta [ ]. Others [ ]......

Please briefly comment on each aspect identified with details: ...... 229

16. To what extent do you think the activities of the Multinational and oil and gas Corporations operating in the Niger Delta in collaboration with the Nigerian Government negatively impacted the inhabitants: - Environment:

Health ......

If you are a medical official give detailed statistics of the type of illness/diseases and comment on whether the five (5) most prevalent diseases on the increase are environment induced? ......

Primary Occupation ...... Socio economic life ......

Traditional Heritage/ Values ......

17. Do you think there is a growing poverty issue among the inhabitants, central to the cumulative negative impacts of the activities of multi national oil and gas corporations operating in the Niger Delta Area? (i) Yes [ ] or (ii) No [ ] comment briefly on the reasons for your answer ...... 230

18. Do you think there is a laid out legal framework for redress? (i) Yes [ ] or (ii) No [ ] If your answer is Yes. Has this redress mechanism produced sufficient or adequate compensation for the Niger Delta victims of environmental and human right violations in Nigerian courts? (i) Yes [ ] or No [ ]. 19. What factors account for the lack of adequate remedy? (i) There is no comprehensive and enforceable environmental legislation (law) in Nigeria that guarantees the protection of the Niger Delta Minorities environmental right [ ], (ii) The litigation process is too expensive, cumbersome and difficult under the current legal/justice system [ ], (iii) Most judges are not trained in contemporary environmental law in the course of their legal education and not enough continuous legal education or on the job training in environmental law, a relatively new area of specialty in law [ ], (iv) Most courts are using their limited knowledge in the common law i.e. Law of Tort-Negligence to reach decisions in purely environmental law-strict liability cases [ ] , (v) The over bearing influence of the government and multi national oil and gas corporations on society including the judiciary [ ], (vi) Lack of judicial independence [ ], (vii) Non availability of authoritative reference law books on the subject environmental law (viii) Others [] Please comment briefly ...... 231

20 Do you think the Niger Delta can effect meaningful change through the rule of law in Nigeria? (i) Yes [ ] (ii) No [ ] If your answer is No, do you think this is as a result of their minority status in Nigeria? (i) Yes [ ] (ii) No. Comment briefly in details the reason for your answer ......

21 Do you think The Niger Delta Indigenous Minority People and their environment would have been better protected if the government of Nigeria had not taken away from them their constitutional environmental, socio cultural rights to oil and gas resources found in their homelands? (i) Strongly Agree [ ] (ii) Agree [ ] (iii) Undecided [ ] (iv) Strongly Disagree [ ] (v) Strongly Disagree [ ] Briefly comment on the reasons that informed your answer ......

22. In the absence of meaningful change from within Nigeria do you think the Inter? National Community (The United Nations Organization) can play any significant role towards solving the Niger Delta Crisis? ......

23 Considering the fact that The United States of America is the leading importer of Nigeria's oil and gas - mainly from the Niger Delta, do you think the US can in spite of its strategic economic interest provide the much needed objective leadership as the sole super power towards the protection of the Niger Delta's People's indigenous minorities Environmental and human rights? ...... 232

24. Do you think Local or International Non Governmental Organizations (NGOs) can play any significant role? ......

25 Suggest ways the NGOs effectiveness can be improved 233 234

APPENDIX6

TABLE SHOWING SELECTED OIL AND GAS SPILLAGES BETWEEN 1989 - 2004 AND THE EXTENT OF INACCURATE DOCUMENTATION IN NIGERIA

2 3 4 5 6 7 8 9 10 11 12 13 14 SINO YR SPDC NAO ELF/ NPN AON 1#( CNU INC CNL Estd. Estd. No. of Estd. No. of COY EPNI GOLF TEXACO No. of Barrels barrels lost TOTAL Barrels Recovered Soil led 1 1989 61 10 16 3 1 - 1 9 62, 147.59 1,467.25 60,680.34 2 1990 73 29 7 4 5 1 3 11 115.2264.50 5,172.50 114709.20 3 1991 79 20 7 7 1 3 6 11 155.031.33 1,402.25 153629.08 4 1992 139 31 6 3 2 1 2 2 18 127,161.54 7,021.00 120140.54 5 1993 226 15 3 3 3 1 1 25 217,310.14 1,973.50 215336.64 6 1994 219 30 12 6 2 1 8 27 232,259.70 1,692.25 230567.45 7 1995 184 31 15 10 1 4 12 45 267,561.41 8,846.39 258715 02 8 1996 205 20 9 26 1 3 3 9 64 343,841.35 1,070.92 342770.43 9 1997 194 34 13 16 2 1 2 14 66 574,749.52 1,243.50 573506.02 10 1998 83 13 11 20 12 14 113 769,338.68 383,621.50 385717.18 11 1999 178 58 9 10 9 3 21 51 110 828,013.72 19,000.80 809012.92 12 2000 131 68 2 5 27 74 151 1,010,179.75 57,1201.07 953059.54 13 2001 200 72 7 12 3 2 71 82 130 1, 112,920.17 73, 190.31 1039729.86 14 2002 174 83 19 17 5 9 95 110 190 1,319,081.00 21,000.00 1298081.00 15 2003 162 71 21 21 7 1 3 113 117 115 1,412,000.01 17,579.36 1394420.65 16 2004 272 85 20 19 5 2 1 117 132 129 1,621,513.09 31,025.03 1590488.06 TOTAL 2580 670 175 179 47 5 8 473 636 1214 859784.33 632426.77 9420423.39

SOURCES:

1. Department of Petroleum Resources, Nigerian National Petroleum Corporation, Port Harcourt from 1989 - 2004

2. J.F. Fekumo, Oil Pollution and the problems of compensation in Nigeria. Oil Pollution and the Problem ofCompensation in Nigeria p. 3 ( F and F Publications 2001) ..

3. Interview with Dr. J. F. Fekumor, PortHarcourt January, 17 2004

4. Interviews with the victims of the Ijaw Clans in the selected and/ or affected areas in the Niger Delta of Nigeria and the personal records of local oil spill clean up contractors for the period 1989 - 2004. 235

APPENDIX7

TABLE OF RECOMMENDED OIL POLLUTION COMPENSATION LIST

Table of Selected Oil Pollution Items and the Unilateral Compensation List Enforced by the Lagos Chamber of Commerce without consultations with the affected Niger Delta indigenous people, their Local, State and other requisite government departments. Note that the 2005 column represents the research base actual cost of listed items for consultations among stakeholders and implementation.

Recommended Compensation in Naira 1992 2005 Mature Immature Mature Immature

(Thinning) (Thinning)

A: 1. Mahogany (k Serugalenis) 1,000.00 750.00 30,000.00 21,500.00 2. Mahogany (khaya entandror 1,000.00 750.00 30,000.00 21,500.00 3. Walnut (lros spp) 1,000.00 750.00 30,000.00 21,500.00 4. Iroko (horophiora spp) 1,000.00 750.00 30,000.00 21,500.00 5. Obeche (Triplochiton v spp) 1,000.00 750.00 30,000.00 21,500.00 6. Kuru (Iophira spp) 1,000.00 750.00 30,000.00 21,500.00 7. Teak (teclonna grands) 1,000.00 750.00 30,000.00 21,500.00 8. Quarea spp 1,000.00 750.00 30,000.00 21,500.00 9. Ebony Wood (Diospyrus) 1,000.00 750.00 30,000.00 21,500.00 10. Mansonic 1,000.00 750.00 30,000.00 21,500.00

B.HARDWOOD 11. Okwen (Brachstega spp) 7500.00 500.00 21,500.00 21,000.00 12. Opepe (nauclea spp) 7500.00 500.00 21,500.00 21,000.00 13. Afzella spp 7500.00 500.00 21,500.00 21,000.00 14. Berlinia spp 7500.00 500.00 21,500.00 21,000.00 15. Agbe (Gossweilero dendron 7500.00 500.00 21,500.00 21,000.00 16. Minusops spp 7500.00 500.00 21,500.00 21,000.00 17. Oxystigma (lolagola) 7500.00 500.00 21,500.00 21,000.00 18. Abura (Mitragyna spp) 7500.00 500.00 22,000.00 21,000.00 19. Afara (Tytrinalia spp) 7500.00 500.00 22,000.00 21,000.00 20. Xylopia spp (Anyi) 7500.00 500.00 21,500.00 21,000.00 21. Albizzia spp 7500.00 500.00 21,500.00 21,000.00 22. Antiaris spp 7500.00 500.00 21,500.00 21,000.00 23. Daellia spp 7500.00 500.00 21,500.00 21,000.00 24. Klaniexdoxa spp 7500.00 500.00 21,500.00 21,000.00 25. Piptadeneastrum spp 7500.00 500.00 21,500.00 21,000.00 236

26. Pycnanthus spp 7500.00 500.00 21,500.00 21,000 .. 00 27. Bar 7500.00 500.00 21,500.00 21,000.00

C: SOFTWOOD 28. Alstonia spp 1,000.00 350.00 20,000.00 21,000.00 29. Celiba spp 500.00 750.00 20,500.00 21,000.00 30. Pterocarpus spp 500.00 750.00 20,500.00 18,750.00 31. Sarcogliffs spp 2,000.00 750.00 20,500.00 18,500.00

D: PLANT SPECIES 32. Irvingia 1,000.00 500.00 12,000.00 10,500.00 33. Teach (tectona grandis) 1,000.00 500.00 12,000.00 10,500.00 34. Gmelina 1,000.00 750.00 12,000.00 10,500.00 35. Pines 1,000.00 500.00 12,000.00 10,500.00 36. Euclypts 1,000.00 500.00 12,000.00 10,500.00 37. Terminalic 300.00 500 .. 00 12,000.00 10,500.00 10, 100.00 E: MANGROVE: - 10,000.00 38. MANGROVEE 10,000.00 39. SPECIES 10,000.00 - - 12,500.00 10,000.00 (Rhizophora/Avicenia) 12,500.00 per stand 12,500.00 'F' Various ec Variouso use 12,300.00 All medical shrubs/herbs - Unclassified plants (fuel wo yam staking fishing traps etc

RECOMMENDED COMPENSATION MARINE FISH SPECIES OLD RATE NEW RATE N/KG 1992 N/KG 2005 1. Horse Mackerel 45 .. 00 5, 250.00 2. Croakers & Drums 40.00 5,300.00 3. Ray 40.00 5,400.00 4. Sale 40.00 5,200.00 5. Sharks 40.00 5,400.00 6. Sardines 30.00 5 ,200.00 7. Mullets 35.00 5,250.00 8. Lessers African Thread fin 50.00 5,250.00 9. Royal Thread fin 50.00 5,250.00 10. Giant African Thread fin 50.00 5,400.00 237

11. Grouper - 5,200.00 12. Mud Fish 30.00 5,150.00 13. Sea Cat Fishes 40.00 5,250.00 14. Mackerl 40.00 5,250.00 15. Grunter 40.00 5,300.00 16. Barracuda 50.00 5,300.00 17. Sea Bass 40.00 5,300.00 18. Breams 40.00 5,250.00 19. African Moon Fish (Selene Dorsalis) - 4,180.00 20. Skate 40.00 5,400.00 21. Snapper 55.00 5,400.00 22. Tarpan 45.00 5,400.00 23. Spade 40.00 5,180.00 24. Saw Fish - 5,350.00 25. Sail Fish 50.00 5,300.00 26. Prawns 50.00 5,450.00 27. Shrimps 50.00 5,400.00

BRACKISH WATER SPECIES 1. Eels 25.00 4,150.00 2. Mudskippers 25.00 3,450.00 3. Shrimps 50.00 3,450.00 4. Periwinkle - 3,200.00 5. Oysters 10.00 3,250.00 6. Clams 10.00 3,150.00 7. Cockles 15.00 3,250.00 8. Whelks 15.00 3,200.00 9. Elops lacerta 45.00 3,180.00 10. Tilapia 40.00 3,150.00 11. Grouper - 3,180.00 12. Angel Fish - 3,150.00 13. Silver Biddly - 3,150.00 14. Silver Cat Fish 40.00 3,300.00 238

15. Shad 30.00 3,200.00 16. Silver Fish - 3,150.00 17. Mud Fish 25.00 3,150.00 18. Gar Fish - 3,100.00 19. Top Minnows - 2,250.00

FRESH WATER FISH SPECIES 1. Hetero branchus spp. (Mud Catfis 40.00 2,350.00 2. Tilipia (Cichlids) 'Atabala' 40.00 2,150.00 3. Heterotis niloticus (bony tonque) 40.00 2,200.00 4. Mormyrus sp. (Snout fish) 35.00 2,300.00 5. Papyrocranus sp. (Knife fish) 30.00 2,150.00 6. Hydrocynus (Tiger Fish) 35.00 2,300.00 7. Clarias sp. (mud cat fish) 40.00 2,350.00 8. Alestes sp. (Characin) 30.00 2,150.00 9. Synodontis sp. (Catfish) 40.00 2,250.00 10 Channa sp. (Snake head 40.00 2,300.00 11 Electric Fish (Malapterunis sp.) 35.00 2,400.00 12 Polypterus sp. 40.00 2,180.00 13 Gyrnnachus sp. 40.00 2,450.00 14 Eels 25.00 2,100.00 15 Shrimps (Macro brachium sp) 30.00 2,400.00 16 Clams (Egeria sp.) 10.00 2,100.00 17 Water Snail (Bulinus africanus) 10.00 1,250.00 18 Hepsetus odao - 1,300.00 19 Protopterus annectens (lung fish) - 1,250.00

OUTBOARD ENGINES 1. 5-8 HP 250,000.00 2 15 -25 HP 400,000.00 3 30-40 HP 550,000.00 239

4 45-55 HP 650,000.00 5 60-75 HP 950,000.00 6 80 and above 1,400,000.00

RATES FOR WILDLIFE RESOURCES ANIMALS Recommended SCHEDULE 1: PROHIBITED ANIMALS Compensation S/No Common Names Scientific Names Old Rate N New Rate N 1 Giraffe Giraffe camelopartalis 4,000.00 110,000.00 2 Gorilla Gorilla gorilla 5,000.00 112,500.00 3 Pigmy Hippotamus Choeropsis liberiensis 5,000.00 112,500.00 4 Black Rhinoceros Diceros bicomis 3,000.00 547,500.00 5 Whales Oder cetacean 8,000.00 420,000.00 6 Dolphins Delphinidae 5,000.00 122,500.00 7 Porpoises Family platanistidae 3,000.00 117,500.00 8 Gray Or Atlantic Seal Halichoenis grypus 2,000.00 115,000.00 9 Chimpanzee Pan troglodytes 3,000.00 117,500.00 10 Gian (Dorby' s Eland) Taurotragus derbianus 3,000.00 117,500.00 11 Immature Elephant Loxodonta africana 5,000.00 112,500.00 12 Manatee Trichecus senegalensis 3,000.00 117,500.00 13 Pigmy Chimpanzee Pan paniscus 3,000.00 117,500.00 14 Cheetah Acinonyx jubatus 5,000.00 112,500.00 15 White-throated Monkey Cercopitaecus 3,000.00 115,000.00 erythrogaster 16 All Columbus Monkeys Colobus polykomos Cbedius etc 1,000.00 112,500.00 17 Lion Panthera leo 5,000.00 712,500.00 18 Leopard Panthera pardus 5,000.00 612,500.00 19 Wild Dog Lycaon Pictus 1,000.00 112,500.00 20 All Pangolins Manis species 1,000.00 112,500.00 21 Western Greater Kudu Tragelaphus cottoni 1,000.00 212,500.00 22 All Pottos Arcocebus calabariensis 1,000.00 112,500.00 23 All Mangabeys Cecocebus species 1,000.00 112,500.00 24 Deill & Mandrills Mandrills species 2,000.00 215,000.00 240

26 Giant Forest Hog Hylochoerus 2,000.00 215,000.00 meinerizhargeni 27 Spotted Hyena Crocuta crocuta 2,000.00 215,000.00 28 Stipped Hyena Hyena hyena 2,000.00 215,000.00 29 Addax Addax nasomaculatus 2,000.00 215,000.00 30 Aardvark Oryxteropus Afer 2,000.00 215,000.00 31 Scimitar Oryx Oryx Algazol 2,000.00 215,000.00 32 Short-nosed crocodile Osteolaemus tetraspsis 1,000.00 92,500.00 33 Long-nosed crocodile Crocodylus cataphractus 1,000.00 92,500.00 34 Klispringer Oreotragus oreotragus 1,000.00 92,500.00 35 Royal Python Python regius 500.00 95,000.00 36 Rock Python Python sebae 500.00 95,000.00 37 Aard Wold Proteles cristatus 1,000.00 92,500.00 38 Water Chevrotain Hyemoschus Aquaticus 1,000.00 92,500.00 39 Caracal Or Desert Lynx Felis carasal 1,000.00 92,500.00 BIRDS 40 All Cranes Family halearicidae 500.00 31,250.00 41 Secretary Birds Sagittarius serpentarius 500.00 31,250.00 42 All Parrots Family psittacidae 500.00 31,250.00 43 Ospreys 500.00 31,250.00 44 Goshawks 500.00 31,250.00 SCHEDULE II: CITES PROTECTED ANIMALS 1 Mature Elephant Loxodona africana 5,000.00 920,000.00 2 Commo, Hippotamus Hippotamus amphibious 5,000.00 915,000.00 3 Bush Pig (Red-River Hog) Potamochoerus porcus 1,000.00 497,000.0C 4 Roan Antelope Hippotragus equines 1,000.00 397,000.0C 5 Buffalo (Bush Cow) Syncerus caffer 5,000.00 312,500.0C 6 All other large carnivores 2,000.00 310,000.0C 7 All other small carnivores 1,000.00 332,500.00 8 Ratel Or Honey Badger Melivora capensis 300.00 330,750.00 9 All Gazelles 1,000.00 182,500.00 10 Africana Civer Vicerra civetta 300.00 115,750.00 11 Water Buck Kobus ellisipraymnus 1,000.00 122,,500.00 12 All Galagos Kalago species 200.00 92,400.00 13 Warthog Phaceochoerus Aethipicus 500.00 121,250.00 14 Sitatunga Limmotragus spekei 1,000.00 122,250.00 15 Western Harte beast Alcelaphus buselaphus 1,000.00 122,250.00 16 Western African Bushuck Tragelaphus scriptus 500.00 121,250.0( 241

17 Buffoons Koh Kobus kobus 500.00 111,250.00 18 Lake Chad Koh Adenota adolfi fridorici 500.00 111,250.00 19 Bohor Reed Buck Redunca redunca 500.00 111,250.0C 20 Benue Koh Adonota Loderi 500.00 111,250.0C 21 All Duckers 500.00 111,250.00 22 Spring Hare Pedetes capensis 500.00 l l l ,250.0C 23 All Jackals Canis species 100.00 l l l,750.0C 24 Fennec Fannecus zarda 100.00 l l l,250.0C 25 All Foxes 100.00 l l l,250.0C 26 Two spotted Palm Civet Nanadimia bimotata 100.00 111,250.0C 27 Zorilla or Stipped polecat Retonyx etmatus 100.00 l l l,250.0C 28 Mamtam Reed Buck Rednunca fulrovufula 500.00 l l l,250.0C 29 Hare Lapus capensis 100.00 l l l,250.0C 40 Oribi Ouerbia ourebi 300.00 l l l,750.00 41 All Mongooses Family Herpestinae 100.00 l l 1,750.00 42 All Pelicans Pelicans species 200.00 111,500.00 43 All Small Cats Felis species 200.00 111,500.00 44 All Monkeys (Except those Already Mentioned) 200.00 112,500.00 112,000.00 45 All Genets Genetta species 100.00 112,50.00 46 Spitting Cobra Naja nigricollis 100.00 112,050.00 47 All Hyraces 100.00 112,250.00 48 African Hedge Log Atelerix albivenvic 100.00 112,250.00 49 Grass Cutter/Cane Rat Thryonomys 200.00 111,000.00 swinderzmus 50 All Squirrels 100.00 112,250.00 51 All Other Rats 100.00 112,250.00 52 All Shrews 20.00 112,050.00 53 All Mice 20.00 112,050.00 54 All Frogs 20.00 112,050.00 55 All Other Snakes (Not yet mentioned) 100.00 112,250.00 56 All Toads 20.00 112,050.00 57 African Giant Rat 100.00 112,250.00 58 All Butterflies & Insects 20.00 47,050.00 BIRDS 1 Ostrich Struthio camelus 1,000.00 212,500.00 2 All Vultures 200.00 212,500.00 3 All Herons 200.00 212,500.00 242

4 All Bitterns 200.00 212,500.00 5 All Eagles 100.00 121,500.00 6 All Ducks, All Geese 200.00 121,500.00 7 Lesser Hombills 500.00 21,250.00 8 Greater White Egrets 500.00 21,250.00 9 All Other Egrets 100.00 21,250.00 10 All Scorts 100.00 21,250.00 11 All Falcons 200.00 21,500.00 12 All Kites, All Buzzard 100.00 21,500.00 13 All Harriers 200.00 21,500.00 14 Hammerkp Scopus umbretta 100.00 21,250.00 15 African Spoonbill Platalea alba 100.00 21,250.00 16 All Hawks, Shriks, Guinea Fowls 100.00 21,250.00 17 Martins 100.00 21,250.00 18 Francolins 100.00 21,250.00 19 Patridges 100.00 21,250.00 20 The Grebas 100.00 21,400.00 21 Ibis, Crows, Cuckoos, Coucals 100.00 21,250.00 22 Kestrels, Turacoes Plantain Eaters 100.00 21,250.00 RECOMMENDED COMPENSATION RA TE IN NAIRA 2005 SINO FORAGE(PASTURE)CROP Mature Immature Seedling 1 Tridax Procumbies 18,020 10,000.00 5,000.00 2 Leucaena hicocephala 18,020 10,000.00 5,000.00 3 Calopogonim 18,030 10,000.00 5,000.00 4 Centiosema Pubescens 18,030 10,000.00 5,000.00 5 Peuraria Phaseolide 18,030 10,000.00 5,000.00 6 Stylosanthes quiavesis 18,030 10,000.00 5,000.00 7 Desmodium heterophythen 15,030 10,000.00 5,000.00 8 Cassia rotundifolia 15,030 10,000.00 5,000.00 DOMESTICATED FARM ANIMAL (COMMON NAME) 1 Mature Weaner Young Suckling 2 IMMATURE CHICK 3 Diary Cow 90,000 45,000 25,000 4 Bulf 80,000 45,000 25,000 5 Boar 50,000 10,000 9,000 6 Sow 55,000 20,000 8,000 7 Goat (a) Male 8,000 5,000 4,500 243

8 (b) Female 14,000 5,000 2,000 9 Sheep (Female) 14,000 5,000 2,000 10 Ram (Male) 29,000 23,500 21,500 11 Dog 26,000 24,800 21,000 12 Cat 15,500 13,300 12,100 13 Rabbit 15,500 13,400 8,200 14 Poultry 15 a) Fowl (i) 4,000 3,500 3,000 16 (ii) 3,500 2,300 2,200 17 b) Turkey 8,000 5,000 4,000 18 c) Duck (Male) 8,000 5,800 5,500 19 Duck (Female) 9,800 9,500 4,300 20 d) Pigeon 4,500 3,300 3,200 21 e) Guinea Fowl OTHER AGRICULTURAL ENTERPRISES Mature Immature Young Snail (Heliculture) 5,030 3,050 5,020 Apiculture (Honey Industry) BIBLIOGRAPHY

CONSTITUTIONS, LEGISLATIONS AND REGULA TIO NS

Nigeria

Constitution of Nigeria (1999).

STATUTES

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Environmental Impact Assessment Act, (Rev. ed 2004) Cap. E12, § 1- 2.

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243 244

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INTERNATIONAL MATERIALS

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OTHERS

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United Kingdom

An Act for the Abolition of the Slave Trade, 1807, 47 Geo. III, c. 36 (U.K.).

Slavery Abolition Act, 1833, 3 & 4 Wil. IV, c. 73 (U.K.).

United States

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STATUTES

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REGULATIONS

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Minerals Management Services, 43 C.F.R. §§ 202, 203 & 206 (1997).

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Nigeria

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ChiefOtuke eta!. v. Shell BP, [1985] Suit No. BHC/83, F.H.C. 15 (Nigeria). 247

Cole v. P. VAkinyele, [1960] S.C.N.L.R. 192 (Nigeria).

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Garuba v. Kwara Inv. Co. [2005] 5 N.W.L.R. 917 (Nigeria).

Isaac Jasper Adaka Boro v. Nigeria, (1966) 1 A.N. L. R. 263 (Nigeria).

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Romaine v. Romaine, [1992] 4 N.WL.R. 650 (Nigeria).

Shell Petroleum Dev. Co. v. Abel Isaiah, [1997] 6 N.W.L.R. 236 (Nigeria).

Shell Petroleum Dev. Co. v. HB. Fisherman, [2002] 4 N.W.L.R. 505 (Nigeria).

Shell Petroleum Dev. Co. v. Maxon, [2001] 9 N.W.L.R. 541 (Nigeria). 248

Towoju v. Governor ofKwara [2005] 18 N.W.L.R. 957 (Nigeria).

United States

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Alabamians for a Clean Env't v. EPA, 26 E.R.C. 2116 (D. Ala. 1987).

Alba v. EPA, 911F.2d449 (11th Cir. 1990).

Border Power Plant Working Group v. Dept. ofEnergy, 260 F. Supp. 2d 997 (S.D. Cal. 2003).

Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v. Peterson, 685 F.2d 678, 682 (D.C. Cir. 1982).

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Calvert Cliffs' Coordinating Comm., Inc. v. Atomic Energy Comm 'n, 449 F.2d 1109 (D.C. Cir. 1971), cert. denied, 404 U.S. 942 (1972).

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Center for Biological Diversity v. National Highway Traffic Safety Administration, No. 06-71891 (9th Cir. 2007).

Central Valley Chrysler-Jeep v. Witherspoon, 456 F. Supp. 2d 1160 (E.D. Cal. 2006). 249

Central Valley Chrysler-Jeep v. Witherspoon, No. CVF 04-6663 (E.D. Cal. Dec. 7. 2004).

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Sierra Club v. Linn, 502 F.2d 43 (5th Cir. 1974), cert. denied, 421 U.S. 994 (1975), reh 'g denied, 422 U.S. 1049 (1975).

Trivalley CAREs v. Department ofEnergy, 2006 U.S. App. Lexis 25724 (9th Cir. 2006).

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W Neb. Res. Council v. EPA, 943 F.2d 867 (8th Cir. 1991). 251

Weinberger v. Catholic Action ofHawaii, 454 U.S. 139 (1981).

Wyoming v. Hathaway, 525 F.2d 66 (10th Cir. 1975), cert. denied, 426 U.S. 906 (1976).

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Horn v. Sunderland Corp., (1941) 2 K.B. 26 (U.K.).

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Websites

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Interviews

Agbeyei, Egineer Jimmy, in Lagos, Nigeria (Sept. 12, 2005) (conducted at Agbeyei's office at NAPIMS).

Akemotubo (HRM Ezuwei) in his palace at Obotebe, Nigeria (July 15, 2004).

Buku, H.B., Head of Political Science Department, College of Education, Warri (Feb. 28, 2008).

Ebikeme, Augustine, Pere Ekere of Oporomor Kingdom (May 7, 2004).

Egran the 5th of Oporomor Sub-Clan Delta State (Aug. 18, 2004).

Kalanama VIII of Akugbene Mein, in his palace at Akugbene (Feb. 9, 2005).

Oguara, Ronsi, Shell Petroleum and Development Co., Env. & Safety Dept., at Ogunu Warri (Mar 10, 2005).

Okokolo Edon Canter, a renowned traditional historian at Akugbene (Apr. 15, 2004).

Omgbe, Etaye Konuboy, the Amananaowei of Ojobo (the host community to Shell's Beneseide flow station, in his ancient fishing camp (Sept. 12, 2005).

Omisore, Paul, Youth Leader in Washington, D.C. (June 9, 2005).

Oyakungha, Alaowei, at Kusimi-gbene, a suburb of Warri-Ogbe-Ijaw (May 27, 2005).

Ozeke, Harris, at Warri-Ogbe-Ijor (May 8-17, 2004). 263

Ozeke, Harris, Ijaw political historian at Ogbe-Ijoh Warri and the oldest man of the Oyateigha-Otuokpodu Ekere dynasty (Apr. 21, 2004).

Tamaramienyefa, Alaowei Meetini, The Ebe Bebeareowei of Oporomor Sub-Clan in Delta State Ndoro (Aug. 17, 2004).

Torukro, Zaria, Egade Okosuowei, Oyateigha Ojobo (Apr. 7, 2005).

Uzoh, Pereke, (alias Orukrigbe), a Nigerian Biafra Civil War veteran on Wilberforce Island, Bayelsa State, Nigeria (Sept. 8, 2005).