CHAPTER
THREE
LEGAL
FRAMEWORK
3.0.0
Introduction
In this chapter, efforts will be directed toward the
legal framework and under the following headings;
§ The
History of Environmental regulations in Nigeria
§ NESREA
2007
§ Harmful
Waste (Special Criminal Provision) Act LFN 2004
§ Rules
of common law and equity on waste
§ International
Laws Regulating Harmful Waste
§ Basel
Convention on the control of Trans-Boundary Movement of hazardous waste and
other disposal 1989
§ Organization
of African unity (OAU) Convention 1991
§ Bamako
Convention on the Ban of import to Africa and the control of Trans-Boundary
Movement and Management of Hazardous Waste within Africa
§ The
Vienna Convention for the Protection of the Ozone Layer 1985
§ National
Framework on Waste Management
§ 1999
Constitution (Section 20)
§ Federal
Environmental Protection Agency Act (FEPA) 1988
§ The
National Environmental Management: Waste Act 59 of 2008
§ Petroleum
Act Cap.P10 LFN 2004
§ The
Environmental Impact Assessment Act 1992
§ Oil
in Navigable Water Act LFN 2004
§ Oil
Pipeline Act Cap07 LFN 2004
§ State
and Local statue
§ Lagos
State Environmental Pollution Control Edict 1991
§ Kano
State Environmental Protection and Planning Agency Edicts 1990
§ Anambra
State Environmental Sanitation Authority Edicts No15
§ Customary
law
3.1.0
The History of Environmental regulations in Nigeria
The development of Nigerian environmental
regulations can be divided into two:
1) The pre 1988 era
2) The post 1988 era
The Pre 1988 Era: During the colonial era, Nigeria was not
concerned about the protection of the environment; it was not a priority. Accordingly,
there was no policy aimed at preserving and protecting it. The tort of nuisance
was more prominent because disputes in environmental law were not viewed as
public matters warranting state intervention.
The few environmentally related
laws that were applicable criminalized activities that could degrade the
environment. One of the laws was the Criminal Code Act of 1916, which
prohibited water pollution and air pollution. In 1917, the Public Health Act
was enacted. Although, somewhat broad in scope, this Act did not contain
provisions of relevance to the regulation of land, air and water pollution. At
this time, matters relating to the environment were dealt with in a rudimentary
manner, from the view point of environmental sanitation.
Following Nigeria’s independence in 1960 and
the discovery of oil in commercial quantities, laws dealing with the
environment obviously became grossly inadequate. This was owing to the fact
that most of the provisions on environmental protection were scattered
throughout different laws, resulting in ad-hoc response to different needs in
different situations. During the decade following independence, the Government
criminalized polluting activities, particularly those relating to the discharge
of oil in navigable waters and environmental degradation as a result of
petroleum activities.
The 1970s saw the further development of the
Nigeria’s environmental regime in response to the individual growth associated
with the oil boom. River basin authorities64 were created and
environmental units were established in some government ministries. The laws
were, however, typically “knee-jerk” responses to emergency situations.
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64. River Basin Development Authority Act, 1987.
Post 1988 Era: It is pertinent to note that the incidence of dumping toxic and
hazardous wastes in Nigeria woke the Federal Government up to confront the
problem of environmental abuse. This happened on the 19th September 1987 when
Sunday Oyemire Nana, a farmer in Koko, a small village five kilometers from the
coast in the former Bendel State of Nigeria, was approached by Gian Franco
Raffaelli, an Italian business man who had resided in Nigeria for some 20
years, to dump about 3880 tons of toxic and hazardous waste on behalf of an
Italian company.
The Italian ship was discovered in May 1988.
It was made up principally of polychlorobiphenyls (PCBS). However, the hostile media reaction that
accompanied the discovery propelled the Federal Government of Nigeria to
reassess the general state of its environmental regulation. This hastened the
creation of Harmful Waste (Special Criminal Provision etc) Decree65
and the then Federal Environmental Protection Agency (FEPA). Hence, in December
1988, as part of the emerging coordinated approach to environmental issues,
FEPA was established by decree66.
The Harmful Waste Act prohibits, without
lawful authority, the carrying, dumping or depositing of harmful wastes in the
air, land or waters of Nigeria67. The Federal Environmental
Protection Agency (FEPA) protects, restores and preserves the ecosystem of the Federal
Republic of Nigeria68. The decree 58 of 1988 requires FEPA to
establish environmental guidelines and standards for the abatement and control
of all forms of pollution.
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65. Decree 42 of 1988.
66. Decree 58 of 1988.
67. Section 6 of the
Harmful Waste (Special Criminal Provisions) Act, CapH1 LFN 2004
provides for a punishment for life or life imprisonment
for offenders as well as the forfeiture
of land or anything used to commit the offence.
68. Decree 58 of 1988.
FEPA also had the power to initiate policy in
relation to environmental research and technology and in formulating and
implementing policies related to environmental management. In addition, FEPA
was given some enforcement powers including the right to inspect facilities and
premises, search locations, seize items and arrest people contravening any laws
on environmental standards and prosecuting them.
The agency was also empowered to initiate
specific programmes of environmental protection and establish monitoring
stations or networks to locate sources of and dangers associated with
pollution. It also has powers to conduct public investigations or enquiries
into aspects of pollution. FEPA (now
National Environmental Standards and Regulations Enforcement Agency69
is presently the supreme reference authority in environmental matters in
Nigeria although state and local government authorities and institutions
including their environmental departments are still expected to play their
traditional role of maintaining and enforcing standards as well as fixing
penalties charges, taxes and incentives to achieve certain environmental goals.
With the setting up of FEPA, the States Environmental
Protection Agencies (SEPAS)70 were set up. These were complemented
by the Local Governments (LGAs) Environmental Protection Agencies. The 1980 and
1990s witnessed the most drastic and systematic development of environmental
laws in Nigeria, partly owing to Nigeria’s subscription to a number of
international conventions and treaties71 during this period.
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69. National
Environmental Standards and Regulations Enforcement Agency (Establishment) Act,
2007 replaced FEPA Act, 1988.
70. Kwara State Environmental Protection Agency
Act, Cap K16 Laws of Kwara State, 1992 is an example.
71. Stockholm
Declaration on the Human Environment, 1972.
Legislations on environmental development
improved during this period; we had various Nigerian legislations on the
environment72 and some of them are still in operation today.
3.1.1
NESREA 2007
The primary
objective and function of National Environmental Standards and Regulations
Enforcement Agency (NESREA) is the enforcement of all laws, guidelines, policies
and standards on environmental matters in Nigeria. NESREA73 was established by the
NESREA Act in 2007.74 Apart from the contents of the NESREA Act
itself which pertain or could be extended to environmental protection in the
manufacturing Sector, the Minister of Environment had under powers granted him
under the Act75 made particular aforementioned Regulations with
regard to environmental protection in the manufacturing industries. These
Regulations which are of particular and extensive importance to the
manufacturing industries and shall be examined in this work are the National
Environmental Regulations on Sanitation and Waste Control; Food, Beverages and
Tobacco Sector; Textile, Wearing Apparel, Leather and Footwear industry;
Chemicals, Pharmaceuticals, Soap and Detergents manufacturing industries; Base
Metals, Iron and Steel Manufacturing/Recycling Industries Sector; Domestic and
Industrial Plastic, Rubber and Foam Sector; and Electrical /Electronic Sector.
Accordingly
manufacturing sector or manufacturing industries as used in this treatise
should be understood to mean industries in the food, beverages and tobacco
sector; textile, wearing apparel, leather and footwear industry;
Electrical/Electronic sector; chemicals, pharmaceuticals, soap and detergent
manufacturing industries; base metals, iron and steel manufacturing/recycling
industries sector; and domestic and industrial plastic, rubber and foam sector
specifically.
72. Environmental Law
Research Institute Synopsis of Laws and Regulations on the Environment in
Nigeria “Environmental law and policies
in Nigeria”. <http://www.elri-ng.org/newsandrelease2.html>. Accessed on 02 January 2014
73. Section 7(a) ibid
74. hereinafter maybe referred
to as “the Agency”
75. Section 1, NESREA Act
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