JUDICIAL ATTITUDE TO ENVIRONMENTAL LITIGATION AND ACCESS TO ENVIRONMENTAL JUSTICE IN NIGERIA


JUDICIAL ATTITUDE TO ENVIRONMENTAL LITIGATION AND ACCESS TO ENVIRONMENTAL JUSTICE IN NIGERIA

ABSTRACT

This paper examines judicial attitude to environmental litigation and access to environmental justice in Nigeria. The paper employs expository analysis as its methodology in discussing the theme. Essentially, the paper finds that environmental litigations in Nigeria are bedeviled by legal technicalities such that victims of environmental pollution and degradation are ultimately denied access to justice. Ranging from issue of locus to territorial and subject matter jurisdiction, victims of oil spill and environmental degradation are often left without judicial remedies. The paper finds that consequently, the people of the Niger Delta are increasingly losing confidence in the judiciary both at the domestic and international level. This has heightened militancy and youths’ restiveness in the area leading to loss of revenues and sometimes lives.

The paper notes with concern the recent trend of outsourcing justice, as evident in attempts to bring environmental pollution cases in Nigeria before domestic courts abroad. For example the celebrated case of Kiobel v Royal Dutch Shell, heard in United States of America. Kiobel is arguably a setback to this approach of searching for environmental justice before international courts and a reminder on the need to look inwards. This paper calls for judicial flexibility and a more proactive approach to legal reasoning by Nigerian courts, in order to put environmental matters on the front burner of our national discourse. Unless and until environmental justice is entrenched in Nigeria through judicial activism, Governmental inertia and unwillingness to provide remedies for victims of environmental degradation may continue to fuel militancy in the years ahead.

CHAPTER ONE

INTRODUCTION

Ever since 1956 when oil was first discovered in Nigeria at Oloibiri in present day Bayelsa State, exploration activities have brought with it, grave environmental problems. Oil spill, environmental pollution and degradation, destruction of landscape among other issues have continued to plague the environment leading to loss of arable farm lands, aesthetic environment, fishing activities, revenue and sometimes lives. The people in their resolve to protect their environment have adopted various mechanisms ranging from militancy to dialogue, and from open confrontations with companies operating in the area, to institution of court actions. In the search for justice, there have been frustrations and dashed hopes. Legal technicalities such as locus standi and jurisdiction both at the domestic level and international level as epitomized in Kiobel on the one side, and poverty on the other have painfully been exploited by certain unscrupulous multinational corporations to deny victims of environmental pollutions, justice.

Thus Nigeria, the most populous nation in black Africa, rich in oil but underdeveloped has witnessed a monumental share of environmental problems which justify local and international attention. The need to use law as a vehicle in the regulation, management and protection of the environment has thus become paramount.

Unfortunately, the quests to attain redress for environmental problems have not been the most straightforward endeavour in Nigeria. Aggrieved parties therefore resort to litigating environmental problems before international courts. Using the jurisprudence evolved in the US case of Kiobel v. Royal Dutch Shell (Kiobel) as a reference point, this paper discusses how extraterritorial litigation may not be a long term ingenious solution to the problem of attaining environmental justice in Nigeria,. This paper analyzes the legal and technical challenges perennially faced by environmental litigants in Nigeria, such as Locus Standi, Pre-Action Notice and Limitation of Action. The paper argues in favour of a more flexible interpretation of the law in order deliver justice to victims of environmental problems in Nigeria. It argues that the current heightened activities of oil thefts and sustained militancy in the Niger Delta would remain and may rise on a geometric scale if justice is continually denied to victims of environmental nay oil exploration in Nigeria. It is imperative for the Nigerian judiciary to play a more proactive role in delivering environmental justice to the common man and woman. For Nigeria to turn the corner, Nigerian judges will need to be more flexible in interpreting the law and in exhibiting zealous judicial activism whenever issues of environmental abuse are brought before them.

BACKGROUND OF THE STUDY

Nigeria, the most populous nation in black Africa, rich in oil but Underdeveloped2 has her own share of environmental problems which justify local and international attention. In terms of Nigeria’s environmental problmes,3 the four broad issues being accorded highest priority are the following:-

1. Ensuring sustainable industrial production: – With the exception of the petroleum industry, most industries do not have waste treatment systems. The few treatment plants that do exist either are not functioning as a result of over use or lack of proper servicing or are unable to cope with the vast amounts and types of industrial effluents passing through them. The real challenges of industrial pollution can be identified thus:- (a) air pollution (gas or particle emissions), especially from the cement, steel and asbestos industries; (b) land and water pollution – effluent discharged onto land and into water has become a great concern, particularly in view of the epidemic tendencies of such pollution. The pharmaceutical, chemical, textile, food processing and oil industries are the major polluters; and (c) noise pollution.

2. Preventing and reversing desertification: – Nigeria has lost about 351000 square kilometres of its land to the desert, and the desert is advancing at a yearly rate of 0.6 kilometres. Desertification is the most important problem for northern Nigeria. Entire settlements, and in some cases major access roads, were buried by sand dunes in some parts of the north quite recently.

3. Managing forest, wildlife and natural resources: – Deforestation and loss of wildlife resources are problems throughout the nation. Deforestation affects timber production and the production of non-wood products (such as medicines, food and paper) that are obtained from the wood. There has been a ban on the export of wood obtained from natural forest since 1976, but much of the deforestation that occurs is the result of using wood for domestic purposes.

Hunting is a major cause of loss of wildlife. There is a need to protect wildlife and biodiversity by specifically providing for the protection of certain species and areas that are of scientific, recreational or aesthetic value.

4. Combating floods and inland and coastal erosion: – Nigeria’s coastal resources have been greatly damaged by erosion and this has had severe financial consequences. Research into methods of controlling floods and erosion is being promoted.4

The need to use law as a vehicle in the regulation, management and protection of the environment has thus become paramount.5

The importance of the environment to humankind, the consumer of the environment cannot be over emphasized. In view of the fact that the environment is a major source of national and international development, it must be protected from pollution, degradation or damage.6 Since a pollution of the environment could result in its decay, which will ultimately affect meaningful social and economic development as well as the quality of life of humankind and other species of biodiversity,7 environmental law prescribes litigation to protect and preserve the environment from any misuse, abuse or destruction. And this is made possible by the law in the light of the violatory provisions of the municipal jurisprudence, coupled with the array of multilateral environmental treaties and rules of international law.8 Aggrieved parties therefore resort to environmental litigation in accordance with the procedure laid down by law.

It is through litigation that courts enjoy their unique role in upholding the environmental rule of law.9

It is against this background that this paper seeks to realize the following objectives: –

OBJECTIVES OF THE STUDY

The following forms the objectives of the study;

⦁ To determine the nature of environmental litigation;

⦁ To examine judicial approach to some of the common problems that arise in the different types of environmental litigation, including issues of jurisdiction, burden of proof and judicial remedies;

⦁ To highlight judicial approach in other jurisdictions;

⦁ To conclude with some recommendations.

⦁ SCOPE OF ACCESS TO ENVIRONMENTAL JUSTICE IN NIGERIA AND THE QUESTION OF JURISDICTION

Activities of oil companies in Nigeria may result to both civil and criminal liabilities. As such, environmental litigation can take many forms, including civil actions based on tort, contract or property law, criminal prosecutions, public interest litigation, enforcement of fundamental human rights or complex issues which may arise when cases involve trans-boundary environmental harms.

At common law, an action in an environmental litigation may be based on either negligence, nuisance or under the rule laid down in Rylands v. Fletcher. Each of these common law actions, have some essential requirements which, the plaintiff has the onus of proving. These torts can be used to curb environmental pollution and promote conservation. Apart from the problems that an award of damages is dependent on certain technicalities and that such damages may not even be sufficient to redress the harm, the major problem with case law is that it depends on a willing plaintiff. Where the litigation costs are too high or because of litigation apathy, or lack of means these torts go unchecked. More telling is the fact that they cannot be used on an efficient basis for public regulation of the environment. This explains why much of environmental law is statute based.

Many environmental legislation impose strict liability or and provide for compensation rather than damages. For example, the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act (NESREA Act), together with other environmental statutes form the backbone of Nigeria’s environmental law. A critical analysis of the NESREA Act and selected environmental statutes however demonstrate why the legal mechanisms in place for protecting the Niger Delta have failed. For example, it is difficult to understand why the oil and gas industry, arguably the greatest environmental threat to Nigeria, is excluded from so many of the NESREA Act’s provisions.

Part 2 of the NESREA Act, including sections 7 and 8, detail the functions and powers of the Agency and council. These sections are most illustrative of the exceptions in place for the oil and gas industry. Section 7 provides exceptions in five of its thirteen provisions, requiring the Agency to:

1. Enforce compliance with regulations on the importation, exportation, production, distribution, storage, sale, use, handling and disposal of hazardous chemicals and waste other than in the oil and gas sector;

2. Enforce through compliance monitoring, the environmental regulations and standards on noise, air, land, seas, oceans and other water bodies other than in the oil and gas sector;

3. Create public awareness and provide environmental education on sustainable environmental management, promote private sector compliance with environmental regulations other than in the oil and gas sector and publish general scientific or other data resulting from the performance of its functions.

4. Conduct public investigations on pollution and the degradation of natural resources, except investigations on oil spillage, Environmental Litigation

5. Submit for the approval of the Minister, proposals for the evolution and review of existing guidelines, regulations and standards on environment other than in the oil and gas sector including atmospheric protection, air quality, ozone depleting substances, noise control, effluent limitations, water quality, waste management and environmental sanitation, erosion and flood control, coastal zone management, dams and reservoirs, watershed, deforestation and bush burning, other forms of pollution and sanitation, and control of hazardous substances and removal control methods, Environmental Litigation

6. Develop environmental monitoring networks, compile and synthesize environmental data from all sectors other than in the oil and gas sector at national and international levels. Thus, the exceptions in part two bar the Agency from enforcing hazardous waste regulations in the oil and gas sector. The Agency cannot monitor, license, research, survey, study, or audit the sector. It may not propose evolution of the environmental regulations for, promote compliance in, or conduct investigations of the oil and gas sector. Thus, while the Agency is technically allowed to ‘enforce compliance with laws, guidelines, policies and standards on environmental matters’ it may not observe the oil and gas sector in any way to determine the level of compliance by stakeholders.

The NESREA Act provides the oil and gas sector additional exceptions in sections 24, 29, and 30. Under section 24, although the Agency may review effluent limitations on existing point sources, it is barred from making regulations on effluent limitations on new and existing point sources in the oil and gas sector. Environmental Litigation

Section 29 states: The Agency shall co-operate with other Government agencies for the removal of any pollutant excluding oil and gas related ones discharged into the Nigerian environment and shall enforce the application of best clean-up technology currently available and implementation of best management practices as appropriate. Nigeria’s sole environmental agency is thereby inexplicably prevented from participating in the clean-up of any pollution caused by the oil and gas industry. Environmental Litigation

Finally, section 30 prohibits Agency officers from entering and searching all oil and gas facilities even with a warrant issued by a court. This section further inhibits the Agency from enforcing any environmental regulations in the oil and gas sector. Instead of simply declaring that the oil and gas sector is outside of the Agency’s purview, the NESREA Act gives the Agency the power to enforce environmental regulations in the oil and gas sector but robs it of the ability to actually do so. Environmental Litigation

The effects of these exemption provisions are that the supposed environmental regulator in Nigeria has not legal basis or power to investigate and punish environmental default in Nigeria’s oil and gas sector. This has been a major barrier to victims of oil pollution in the Niger-Delta who are faced with the brazen reality that NESREA may not provide any haven after all. They are therefore left with one major option: to go to court and seek redress. As we will discuss in what follows, technical and procedural requirements of establishing jurisdiction and locus standi have equally left litigants in Nigeria with serious if not more issues to ponder on. Environmental Litigation

 

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