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:
- To evaluate the criminal, civil and customary laws that are applied to harmful waste in Nigeria.
- To examine cases of criminal prosecution of oil companies in Nigeria, under the Harmful Waste (Special Criminal Provision, etc.) Act of 2004.
- To validate the proposed framework for determining the compensable value of damages due to harmful waste
- 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
[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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