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Thursday 4 January 2018

An Appraisal of Criminal Prosecution of Oil Companies under the Harmful Waste (Criminal Provision) Act 2004 of Nigeria






CHAPTER ONE
GENERAL INTRODUCTION

1.0      Introduction
Nigeria is one of the most populous nations in Africa and is rich in crude oil, however, it has experienced its own share of environmental problems.  Oil companies in their bid to explore and exploit oil have done more harm than good to the overall condition of the natural environment. This has resulted in need to regulate the activities of oil companies. One of such regulations brought about the promulgation of several laws like the Harmful Wastes (Special Criminal Provisions, etc.) Act, amongst others. This Act provides the legal framework for the effective control and management of the disposal of harmful waste into any environment within the confines of Nigeria.[1] In view of this, this study therefore seeks to appraise the impact and effectiveness of this law in regulating the criminal prosecution of oil companies in default of waste management regulations/legislations in Nigeria.

1.1      Background to the Study
Over the last 50 years, Nigeria has witnessed serious environmental degradation occasioned by harmful waste from oil exploration and exploitation, refining, transportation and product marketing. Oil exploration activities have extended from the Niger Delta Basin to the Lake Chad Basin in the north-eastern part of the country and the south-east Niger Delta.[2]
The Nigerian government has ordered oil companies operating in the country to comply with guidelines published by the DPR (Department of Petroleum Resources), the monitoring arm of the Nigeria National Petroleum Corporation (NNPC), or risk criminal prosecution.[3] The 300-page guidelines provide rules to reduce environmental pollution, harmful waste and enforce procedures for environment monitoring. The DPR has also been tasked with conducting regular checks on overall environmental health and safety, with strict environment audits on the oil company’s activities.[4]

This environmental pollution audit is the focus of the Harmful Waste (Special Criminal Provisions, etc.) Act, which takes an all-encompassing outlook on pollution caused by improper waste management. This includes all waste management activities whether it relates to those affecting the water, (including fresh water and marine), land (including the underground and the topsoil) or the air (i.e. everything above the ground). It also looks other health hazards as it relates to the environment, affecting all living creatures, terrestrial, aquatic and the birds of the air.[5]
 
This regulation(s), together with the growing environmental awareness gradually building-up in Nigeria, has encouraged litigants to explore environmental litigation, which can take many forms including civil actions based on tort, contract or property law, criminal prosecutions, public interest litigation, or enforcement of fundamental human rights. Also, at common law, an action in an environmental litigation may be based on either negligence, nuisance or under the rule laid down by Rylands v. Fletcher[6] while complex issues may arise involving transboundary environmental harms may be heard by courts of international jurisdiction.[7]  All these aims at achieving the overall protection of the natural environment from harmful waste or at least achieve the successful prosecution of defaulting oil companies.
1.2      Objectives of the Study
The main objective of this study is to appraise the criminal prosecution of oil companies under the Harmful Waste (Special Criminal Provision, etc.) Act of 2004. The specific objectives are:
  1. To evaluate the criminal, civil and customary laws that are applied to harmful waste in Nigeria.
  2. To examine cases of criminal prosecution of oil companies in Nigeria, under the Harmful Waste (Special Criminal Provision, etc.) Act of 2004.
  3. To validate the proposed framework for determining the compensable value of damages due to harmful waste
  4. To identify areas of improvement in policies in Nigeria relative to required global standards.
1.3      Scope of the Study
The scope covered in this study falls within the purport of the appraisal of the criminal prosecution of Oil Companies under the Harmful Waste (Special Criminal Provision, etc.) Act of 2004 and will critically examine its impact and effectiveness of this law on some selected cases on criminal prosecution of oil companies.
1.4      Methodology
The methodology for this study will utilize an analytical approach of the concepts/definitions of terms in the environmental law context and a contextual analysis of the laws of Nigeria from both primary and secondary sources of the law on harmful waste like constitutional provisions, other legislations, judicial decisions and international laws. It will also use secondary sources of information such as text books, research reports, journals, seminar papers, etc., as may be found relevant to the subject matter under review. 
1.5      Literature Review
Recent studies indicate that oil production and exploration operations have undoubtedly produced harmful wastes, the non-conscientious handling and disposal of which has over the years led to environmental, economic and health problems in Nigeria.[8]
In particular, the Niger-Delta region of the country, which is the host community to most oil companies, has experienced harmful wastes from various offshore platforms constituting atmospheric emissions, drill cuttings, drilling fluids, deck drainage and well treatment fluids, pigging wastes, asbestos, batteries (wet and dry cell), metallic and plastic drums, in addition to oil spills which has  resulted from accidental discharges, deliberate or willful acts of vandalization, maintenance negligence and human error.[9]
Environmental hazards from harmful waste in the Niger Delta has had a multidimensional and multiplier negative effect in the oil bearing communities, which has led to the destruction of aquatic life and sources of economic livelihood, destruction of vegetation and poor yield of farm crops, unemployment, pollution of sources of natural water supply for domestic usage, amongst other things.[10]
Indeed, the target of safety should be to achieve far lower quantum of hazardous wastes using recycling technology to convert all such waste into useful forms. This is why the Nigerian Government through the Department for Petroleum Resources (DPR), implements the Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (EGASPIN) in 1991 to ensure that oil exploration and production operations do not impact the environment negatively through harmful waste disposal system and management practices.[11]
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[1] P   Bellamy   Academic’s   Dictionary   of     Environment   (200
[2] United Nations Environment Programme (UNEP) Training Manual on International Environmental Law (2006) Chapter 2 at  15.
[3] These guidelines were first issued in 1991 by the DPR and revised in 2002 and are in the process of being    reviewed again 
[4]   Bellamy op.
[5] See United Nations Environmental Programme (UNEP) publication available at  http://oils.gpa.unep.org/about.htm accessed on 11 October, 2011.
[6] 1866) L.R. 1 Ex. 265. the Rule in Rylands v. Fletcher reads: “
[7] M K Hill Understanding Environmental Pollution  (2004) 2nd edition, 239-240.
[8] STEINER, R. 2011. Bodo Oil Spill Environmental Damage Assessment and Proposed Remediation Bodo, Nigeria    Unpublished.
[9] Aghanifo, J. (2004), Environmental law and under Development in the Niger Delta. ABC Publishers Ltd,Uyo..
[10] Agho, M., et al (2007), Coping with Climate Change and Environmental Degradation in the Niger Delta of   Southern Nigeria. Paper Presentation at the Community Research and Development Center (REDC), Benin City
[11] EBEKU, K. S. 2001a. Oil and the Niger Delta People: The Injustice of the Land Use Act. CEPMLP/JOURNAL, 9.

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