Oil and Gas Law II LAW 412 PDF

NATIONAL OPEN UNIVERSITY OF NIGERIA SCHOOL OF LAW COURSE CODE: LAW 412 COURSE TITLE: OIL AND GAS LAW II 1 COURSE CODE: LAW 412 COURSE TITLE: OIL AND GAS LAW II COURSE DEVELOPER /WRITER Gerald Meniti Nwagbogu Macdonna University Okija EDITOR: Mr. Kunle Aina NOUN COURSE COORDINATORS: K. Aina, (Sabbatical) C. Hia, O. Lawal, T. Abisoye (Study Leave) NOUN AG. DEAN: Dr. Godwin I. Oyakhiromen School of Law ` National Open University of Nigeria 2 LAW 412 OIL AND GAS LAW II NATIONAL OPEN UNIVERSITY OF NIGERIA SCHOOL OF LAW COURSE CODE: LAW 412 COURSE TITLE: OIL AND GAS LAW II 3 LAW 412 OIL AND GAS LAW II 2 COURSE GUIDE LAW 412 OIL AND GAS LAW II COURSE DEVELOPER/WRITER: GERALD MENKITI NWAGBOGU ESQ. B.A.(HONS) LAW (LEEDS) LLM(LOND) B.L; MNIM RANK/POSITION: ASSOCIATE PROFESSOR MADONNA UNIVERSITY, OKIJA, ANAMBRA STATE Course Editor: Programme Leader: Course Coordinator: 4 OIL AND GAS LAW II LAW 412 MODULE 1 UNIT 1 Table of Contents 1. Introduction 2. Objectives 3. Main Content 4. Conclusion 5. Summary 6. Tutor Marked Assignment 7. Reference/Further Reading 5 NATURE, CAUSES, TYPES AND INCIDENTS OF POLLUTION 1. INTRODUCTION Quite often, most communities where petroleum is drilled and produced, have had to bear a lot of environmental ravages. Nigeria is not an exception to this phenomenon. Indeed most of these communities are to be found in the Niger Delta Region of Nigeria, which altogether produces over 90% of the nation’s petroleum. It is not uncommon to witness incidents of oil spillage, either due to equipment failure or faulty pipelines. An oil spill can over run farmlands, crops, economic trees, streams, lakes, creeks, fish ponds and even residential buildings. Sometimes it may not be crude oil, but mud or silt deposited on adjoining land or stream during initial exploration activities, as happened in the case of ELF NIGERIA V SILLO (1994) 6 N.W.L.R. (Part 350) 258. The result of such spillages and mudslides is that large portions of land, particularly farmlands, are left with either little or no economic value or permanently destroyed. In addition, fishing rights or access to same are equally destroyed, either partially or permanently as rivers are left polluted or rendered stagnant. For inhabitants of these areas, it has become one huge case of environmental nightmare. The above incidents have led to strained relations between the host communities of the Niger Delta and the multi-national oil companies, as individuals and communities have had to resort to litigation to obtain compensation. What does the law say on such matters? Unit I of this first module is devoted to the nature, causes, types and incidents of pollution in our environment. There will be a general discussion on the issue of 6 environmental pollution facing mankind today. However emphasis shall be placed on that type of pollution arising from oil operations or activities. This is the focus of this unit. This course consists of 28 units of study which are designed to give easy understanding of the course to the students. There will be some useful self examination and tutor marked assignments in the course guide. It is expected that these questions will continuously engage the student concerned, and would be persuaded to seek answers and solutions to the posers given, by using the course guide and other references. It cannot be too strongly emphasized that these questions and assignments are important, and must therefore be given the seriousness they deserve. They will ensure proper understanding of the course. What you will learn in this Course The second segment of this course is also a continuation of the legal aspects of the oil and gas industry. It is a 400 level course for law students. The course is meant to further expose the student to the issues and matters concerning the oil and gas industry. These include pollution emanating from oil mining or prospecting activities, jurisdiction of the court on oil operations, role and functions of the national oil company, NNPC, role and functions of OPEC, vexed issues of indigenous participation, manpower development and transfer of technology. This course, Law 412 is the second part of the course on Oil and Gas Law designed for the second semester. It is a 4-credit unit course. A minimum time of 4 hours per week is required for the duration of each of the two semesters. The student will need to get acquainted with the various pieces of legislations that are related to the oil and gas industry. It is also essential to note that: All these statutes and other regulations will be consulted and referred to in the course of this study. There will be references to other pieces of legislations in some other parts of the world where there are similar practices and comparison will be made thereof. You should take note of the various terms and 7 usages in this course as certain terms of art will inevitably occur in the proper analysis and discussion of the topics. However, as LAW 412 OIL AND GAS LAW II much as possible we have tried to simplify the analysis to make you understand effectively. You need to relate any of the topics in this course to the occurrences in the society and through any examples that are given. Importance of Statutes and Regulations It is essential to note that this course for this semester finds its basis from statutes, regulations and policies. Some of the statutes include but are not limited to the Petroleum Act, the Oil Pipelines Act, Minerals Act, Associated Gas Re-injection Act, the Land-Use Act, Mineral Oil Act, NNPC Act, Petroleum Industry Bill, Local Content Act, Oil in Navigable Waters Act, Oil Terminal Dues Act, Harmful Waste (Special Criminal Provisions) Act, National Environmental Standards and Regulations Enforcement Agency Act. Its sources also include textbooks, journals and monographs on laws relating to oil and gas. You will be referred to some of these texts and you are expected to make adequate use of them along with this course guide. Relevant sections of statutes may be quoted or cited to give specific references during discussion of a topic. You are expected to get yourself familiar with these as much as they are relevant. 8 2. COURSE OBJECTIVES At the completion of this study Unit, the student should be able: - To understand and appreciate the nature, causes, types and incidents of environmental pollution in general, and in particular that type arising from oil prospecting operations or activities of multinational oil companies in the Niger Delta Region of Nigeria. - To define the terms “pollution” and “environment”. - To understand and appreciate the relationship between these terms. - To identify the various types of pollution. - To understand and appreciate the global view of pollution and the environment, and the imperatives of urgent action to prevent further deterioration of our environment, now seen in global warming and climate change. - To understand and appreciate incidents of pollution emanating from oil mining, and their effects on the environment. 9 3. MAIN CONTENT 3.1 Definition of Terms 3.2 Types of Pollution 3.2.1 Land Pollution 3.2.2 Water Pollution 3.2.3 Air Pollution 3.2.4 Noise Pollution 3.3 Global Perspective on Environmental Pollution 3.4 Incidents of Oil Pollution 3.4.1 Pollution from oil spill 3.4.2 Victims of oil spill in the Niger delta area of Nigeria 3.4.3 Pollution from gas flaring 10 4.1 Definition of terms Section 37 of the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act 2007 defines “pollution” thus: “Pollution means man-made or man aided alteration of chemical, physical or biological quality of the environment beyond acceptable limits and pollutants shall be construed accordingly.” The same Section defines the “Environment” in this manner: “Environment includes water, air, land and all plants and human beings or animals living therein and the inter-relationships which exist among these or any of them.” This is the current legislation governing environmental matters in Nigeria. It repealed the Federal Government Protection Agency Act of 1988 (See Section 36 of the Act) From the above definitions, it is clear that any human intervention which affects the natural state of the environment to such an extent that the society finds it unacceptable, qualifies as pollution. I think that the law does recognise that in our modern industrial society, pollution of some kind or to some degree is inevitable. What is objectionable and intolerable however is that it does not exceed certain limits where it would pose hazardous and deleterious effect on man and his surroundings. And this is what the law aims to prevent or control. Here in Nigeria, there is a constitutional provision which guarantees the protection of the environment by the State. Section 20 of the Constitution of the Federal Republic of Nigeria 1999 states: 11 “ The State shall protect and improve the environment and safeguard the water, air and land and wildlife of Nigeria.” 4.2 Types of Pollution Let us first of all look at the various types of pollution affecting man and his environment. Pollution does affect land, water and air. These are important components of our environment, and have easily and progressively become victims of this onslaught posed by pollution. 4.2.1 Land Pollution When oil spill occurs, and spreads on land, it is likely to affect or impair its fertility. Evidence has shown that where oil spill overruns farmlands, they have been found degraded. This is as a result of the effect on the vegetation as well as agricultural yield. See for example the case of S.P.D.C. NIG. LTD V TIEBO VII (infra). Indeed low crop yield has become the bane of local farmers in the affected areas. It is also worthy of note to state that land pollution, aside from oil spill, can be caused by indiscriminate dumping of harmful and hazardous waste materials, like industrial chemicals or even obsolete or expired electronic and electrical equipments. But by far the most dangerous is nuclear toxic waste. It was the dumping of containers of this waste, and subsequent discovery in Koko, Delta State, that woke up the Nigerian nation from its slumber on environmental protection, leading to the promulgation of the Harmful Waste (Special Criminal Provisions) Act 1988 now cited as Cap H1 Laws of the Federation of Nigeria 2004. 4.2.2 Water Pollution Water, an essential factor in environmental sustainance, can be polluted through various means. Oil operations contribute greatly to the pollution of water resources when produce water and other pollutants are discharged into the ocean, rivers, streams and lakes. When this happens, these waters are severely affected often leading to the 12 death of aquatic life. In other words, fish and other varieties and species of animals found in the marine environment are either killed or chased into deep waters. The major cause of this type of pollution is the toxic substances found in produce water. Water pollution can occur through the deposit or dumping of oil operations waste like mud, sand or silt. See the case of ELF NIGERIA LTD V OPERE SILLO (infra). In the same vein, oil operations damage resulting in oil spill can cause pollution of the rivers and streams, by rendering them stagnant. Similarly various industrial wastes, both solid and liquid, have been identified as causes of water pollution. Oil pollution of rivers, lakes and streams in the Niger Delta have had damaging effects on fishermen plying their trade; the common complaint now is low catch yield. 4.2.3 Air Pollution Air pollution is caused by the emission of a variety of harmful gases into the atmosphere thereby altering its natural state and posing danger to the environment. In the oil industry, the continued flaring of associated gas has contributed immensely to the pollution of our atmosphere. This is as a result of the emission of deadly substances like methane and benezene which pose various health hazards to the host communities. But beyond the oil and gas industry, can be found other sources of air pollution. Increased vehicular activities in our urban dwellings have contributed equally to air pollution through the emission of carbon dioxide and other gases. Indiscriminate burning in our various localities including markets, abattoirs and refuse dump sites have all been identified as sources of air pollution. 4.2.4 Noise Pollution This type of pollution is now a common occurrence in urban areas where commercial and industrial activities are part of everyday life. A major contribution to this type of 13 pollution comes from vehicular activities when horns are blared indiscriminately by impatient drivers. Other causes of noise pollution include: (i) Excessive music from variety of sources advertising their wares or products, especially cassette and CD traders. (ii) Excessive noise and sound emanating from a variety of churches and prayer houses in the course of worshipping. (iii) Excessive domestic noise emanating from social and cultural activities like burials, concerts, bazaars, wedding ceremonies etc. That the level of noise pollution in our urban cities has increased alarmingly is now recognised by Section 22 of N.E.S.R.E.A. Act 2007. This Section empowers the agency to make regulations on noise emission, control and abatement in order to preserve and maintain public health. There is no doubt that the effect of noise pollution on human health could be damaging. Excessive noise makes life utterly uncomfortable. It can also impair hearing capacity and at the same time lead to disturbance of sleep and emotional distress. 4.3 Global Perspective on Environmental Pollution 4.3.1. There is today a greater international awareness of the dangers posed by continued deterioration of the environment. The evidence is there for all to see. The major cause of this degradation is pollution which has reached alarming proportions. The phrases” global warming” and climate change are now common place in our lexicon, that no one can pretend that if urgent attention is not given to this monster, the consequences are bound to be dire and catastrophic. Just recently, an international aid organisation, OXFAM, in its report, warned of increase in global hunger in the coming years, as global warming and low investment in agriculture continue to take their toll on the environment. This frightening prospect is obviously traceable to 14 increased level of global pollution, which is a major contribution to global warming, climate change and drought. 4.3.2 Leading industrialized nations of the world like the United States, China, Japan and the European Union have come to recognise this danger, and to this extent have strengthened their municipal laws on combating pollution. The international community under the umbrella of the United Nations is equally active in the battle against environmental pollution. The Kyoto Protocol to the United Nations, an International Convention on climate change, which came into existence in 1997, stands as evidence of efforts by this world body in limiting and reducing greenhouse emissions by countries who signed up to it. 4.3.3 The Convention in effect calls for concerted global action by signatory nations to reduce industrial emissions which contribute adversely to environmental pollution. There are also provisions on the steps to be taken by individual nations to promote and enhance energy efficiency in their national economies, and at the same time introducing policies to reform sectors of the economies that cause pollution. Realising that more is needed to be done on this matter, the world body organized another summit, which was held in Mexico in 2009, to find solutions to the lingering problems of environmental pollution. However no agreement was reached on limits to be placed on industrial emissions. 4.4 Incidents of Oil Pollution 4.4.1 Pollution from Oil Spill We now turn our attention to pollution emanating from the oil and gas sector, being the main focus of this course. There can be no doubt that one of the major causes of pollution in our society today is the oil prospecting activities of multinational oil companies. Environmentalists like Friends of the Earth, reckon that the increase in the level of oil mining in various parts of the world in the last 30 years has contributed 15 greatly to the pollution and degradation of the global environment. In the oil industry, pollution occurs mainly through oil spill, gas flaring and discharge of produce water. In the course of exploration, production storage and transportation of crude oil, events may happen which ultimately result in the spillage of this product. It could be due to equipment failure or mal-function, or well blow out. It could also be attributed to pipeline failure, storage tank failure or loading hose failure. In some cases, the cause has been traced to sabotage, now a common phenomenon in the environmentally ravaged Niger Delta region of Nigeria. What ever may be the cause of oil spill, one thing is clear, and that is the danger it poses to the environment. Even with extensive remediation, the effect on the vegetation and eco-system are often devastating. The oil spill caused by equipment failure in British Petroleum deep water production in the Gulf of Mexico in the United States in 2010, is still fresh in our memories. The effect was, to say the least, utterly destructive. 4.4.2 Incidents of this nature are common in the oil producing areas. This is true of the Niger Delta. Since the discovery of oil in commercial quantities, exploration and production of this precious liquid has progressively been on the increase and with it increase in the level of pollution. The victims are the local inhabitants whose farmlands, fish ponds, lakes, creeks and even residential accommodation are either severely degraded or outrightly destroyed, following spills. There are cases which will clearly depict the picture of oil spill incidents in the oil producing areas of Nigeria, where individuals and communities affected have gone to court in search of compensation. See: (i) NWADIARO V SHELL PETROLEUM DEVELOPMENT COMPANY, NIGERIA LTD (1990) 5 N.W.L.R. (Part 150) 322 (ii) SHELL PERTOLEUM DEVELOPMENT COMPANY, NIGERIA LTD V FARAH (1995) 3 N.W.L.R. (Part 382) 148 16 (iii) SHELL PETROLEUM DEVELOPMENT COMPANY, NIGERIA LTD V AMBAH (1991) 3 N.W.L.R. (Part 593) 1 (iv) SHELL PETROLEUM DEVELOPMENT COMPANY, NIGERIA LTD V ISAIAH (2001) 11 N.W.L.R. (Part 723) 168 (v) ELF NIGERIA LTD V OPERE SILLO (1994) 6 N.W.L.R. (Part 350) 258 (vi) SHELL PETROLEUM DEVVELOPMENT COMPANY, NIGERIA LTD V TIEBO VII & OTHERS (2005) 3-4 S.C. The above cases involved incidents of oil pollution in the form of oil spill which affected the land, swamps, creeks, fish ponds, fishing nets and other valuable properties of the host communities. We shall in subsequent units of this Module throw more light on them. But note that such incidents have led to numerous litigation in that part of the country. 4.4.3. Pollution from Gas Flaring Gas flaring can also cause pollution in the oil and gas industry. This process essentially involves what is often described as the unscientific burning of associated but unwanted gas during oil exploration and production. When oil is pumped out of the ground, it is accompanied by natural gas and produce water. These accompanying products are separated from the crude oil and discharged as wastes. In the case of gas, it is burnt because of inadequate facilities for collecting and gathering them. The produce water, in most cases, is discharged into the rivers or streams along with their toxic substances. In both cases, it is the environment that is left degraded as dangerous 17 toxic substances pollute the air through gas flaring; at the same time rivers, streams and lakes are rendered lifeless through the discharge of produce water and other effluents. 5. CONCLUSION All said and done, pollution of any type, whether emanating from oil activities or non-oil activities, is a serious matter and must be confronted frontally. It has been shown in this unit that the world is now much more aware of the dangers posed by pollution on our lives. Many nation states, including Nigeria, have gone ahead to erect effective legal regimes in the form of laws and regulations to control and reduce this environmental menace. To these laws we shall turn to in subsequent units. 18 6. SUMMARY It has been the principal aim and objective of this introductory unit of Module 1 of the second arm of this course, to explain and analyse the nature, causes, types and incidents of pollution in our environment. The terms “Pollution” and “Environment” have been presented in their statutory garb. It has also been seen that the protection of the environment from pollution is such an important matter that the Constitution, the supreme law of the land, recognises and guarantees it. The effects of such pollution on the environment have been shown to include: - Degradation of land, water and air. - Adverse effect on the vegetation and ecosystem - Reduction in the soil fertility and subsequent effect on agricultural yield. - Destruction of aquatic life in the marine environment which has severely affected local fishing. - Noise pollution in the form of excessive sound or music could pose danger to human health. 19 7 TUTOR MARKED ASSIGNMENT QUESTIONS 1. In what ways is the environment exposed to pollution, and what are the effects of such incidents? 2. Of all the dangers facing mankind today, perhaps the one in urgent need of attention and action by States is environmental pollution. Discuss 3. Oil prospecting activities have contributed greatly to the pollution of the environment, and Nigeria is not an exception. Do you agree? 4. Explain the nature of oil pollution and how it affects the environment. 20 8. REFERENCE/ FURTHER READING (i) Environmental Law in Nigeria: Theory and Practice – by Lawrence Atsegbua, Vincent Akpotaire and Folorin Dimowo. (ii) Constitution of the Federal Republic of Nigeria 1999. (iii) National Environmental Standards and Regulations Enforcement Agency (Establishment) Act 2007. 21 OIL AND GAS LAW II LAW 412 MODULE 1 UNIT 2 Table of Contents 8. Title 9. Introduction 10.Objectives 11.Main Content 12.Conclusion 13.Summary 14.Tutor Marked Assignment 15.Reference/Further Reading 22 STATUTORY CONTROL OF OIL POLLUTION IN NIGERIA INTRODUCTION In Unit 1, we discussed the nature, causes, types and incidents of pollution, with special emphasis on oil pollution. We also drew your attention to the fact that of the different causes of pollution in our environment today, the one emanating from oil prospecting activities of multi-national companies constitutes the most danger to our environment. The question now is what is being done or has been done to combat this menace. In other words, what does the law say on the matter of prevention and control of pollution in our environment? How does society seek to use the instrument of law to check unacceptable levels of pollution? The questions posed above will engage our attention in this Unit. We shall identify the various legislations in Nigeria aimed at preventing and controlling pollution. But as we did in Unit 1, emphasis shall once again be placed on the legal provisions pertaining to the oil and gas industry. The following Statutes or legislations are relevant to our discussions in this unit: 1. Constitution of the Federal Republic of Nigeria 1999 as amended. 2. Petroleum Act Cap P10 L.F.N 2004. 3. Petroleum (Drilling and Production) Regulations 4. Minerals and Mining Act Cap M12 LFN 2004 5. Oil in Navigable Waters Act Cap 06 LFN 2004 6. Oil Pipelines Act Cap 07 LFN 2004 7. Oil Terminal Dues Act Cap 08 LFN 2004 8. Associated Gas Re-injection Act Cap 08 LFN 2004 9. Harmful Waste (Special Criminal Provisions) Act Cap H1 LFN 2004 23 10.National Environmental Standards and Regulations Enforcement Agency (Establishment) Act 2007 11.Environmental Impact Assessment Act Cap E 12 LFN 2004 It should be stated here that the matter of pollution and the environment is not contained either in the Exclusive legislative list or concurrent legislative list of the Second Schedule of the 1999 Constitution (as amended). To that extent therefore, it remains a residual matter upon which the State legislature can competently and exclusively enact a law to the exclusion of the Federal legislature. See (i) FAWEHINMI V BABAGINDA (2003) 3 N.W.L.R. (Part 808) 604 – on tribunals of enquiry matter, and (ii) A.G, LAGOS V A.G FEDERATION (2003) 12 N.W.L.R (Part 833) 1 – on the lack of power on the part of the National Assembly to enact a law for the States of the Federation on town and regional planning matter. In these matters stated above, the National Assembly can only legislate exclusively for the Federal Capital Territory. COURSE OBJECTIVES At the end of this study unit, the student should be able: - To identify the various legislations in Nigerian Law governing pollution. - To identify the statutory provisions contained in these statutory provisions relating to the prevention and control of pollution generally in Nigeria. - To understand and appreciate these statutory provisions relating to the prevention and control of pollution generally in Nigeria. 24 - To understand and appreciate the statutory provisions relating to the prevention and control of environmental pollution in the oil and gas sector in Nigeria. - To understand and appreciate the objectives and functions of environmental protection agency, like N.E.S.R.E.A. 25 3.0 MAIN CONTENT 3.1 Prevention of Pollution generally 3.2 Environmental Enforcement Laws and Agencies 3.3 Objectives and Functions of N.E.S.R.E.A. 3.4 Pollution Control and Preventive Measures under the Act (i) Land resources (ii) Water resources (iii) Air resources (iv) Prevention of noise (v) Discharge of hazardous substances 3.5 Prevention of Pollution in the oil and gas sector. 3.5.1 Petroleum Act 3.5.2 Petroleum (Drilling and Production Regulations) 3.5.3 Minerals and Mining Act 3.5.4 Oil in Navigable Waters Act 3.5.5 Oil Terminal Dues Act 3.5.6 Associated Gas Re-Injection Act 3.5.7 Oil Pipelines Act 3.5.8 N.O.S.D.R.A. 3.1 Prevention of Pollution Generally 3.1.1 Environmental Enforcement Laws and Agencies The position of the law in Nigeria is that both the Federal and State Governments have powers under the Constitution to make or enact laws on the matter of prevention and control of environmental pollution. The current Federal law on this matter is National Environmental Standards and Regulations Enforcement Agency Act 2007. There are also Environmental Pollution Prevention Laws in the various States of the federation. In Anambra State for example, there is the Anambra State 26 Environmental Protection Agency Law, which among other things, seeks to promote, encourage and maintain clean and healthy environment. In Imo State, there is the Pollution Prevention and Control (Miscellaneous Provisions Law) 1985, which among other things seeks to promote a healthy environment by preventing the discharge of industrial wastes into water courses as to impair their quality. We shall however in this course, focus on the provisions of N.E.S.R.E.A. Act 2007. We shall also note the existence of the Environmental Impact Assessment Act 1992. 3.1.2 Objectives and Functions of N.E.S.R.E.A. The aims and objectives of this body are set out in Section 2 of the Act. Essentially it provides that the Agency shall have the responsibility for the protection and sustainable development of the environment in general through enforcement of environmental standards, regulations, rules, laws, policies and guidelines. The functions of the Agency are set out in detail in Section 7 of the Act. Essentially, the Agency is saddled with the responsibility to enforce compliance with laws, regulations, guidelines policies and standards on environmental matters generally, including pollution abatement, other than in the oil and gas sector. The responsibility for environmental pollution prevention and control in that sector is now vested on the National Oil Spill Detection and Response Agency (N.O.S.D.R.A.) a body under the Federal Ministry of Environments. 3.1.3. Pollution Control and Preventive Measures under the Act (i) Land Resources By Section 26(1) of N.E.S.R.E.A. Act, the Agency may make regulations, guidelines and standards for the protection and enhancement of the quality of land resources including prevention of flood and erosion. To underscore the seriousness which the law attaches to land protection and preservation, the Act creates an offence in subsections 3 and 4 of this Section. Specifically a person who violates or is in breach 27 of the provisions of the regulations made pursuant to subsection (1) above, commits an offence and shall on conviction, be liable to pay a fine not exceeding N200, 000 or imprisonment for a term not exceeding one year or to both of them, and an additional fine if N10, 000 for every day the offence subsists (see subsection (3). In the case of a body corporate it shall on conviction, be liable to a fine not exceeding N1, 000.000 and an additional fine of N50, 000 for every day the offence persists. See subsection 4. (ii) Water Resources In order to prevent the pollution of water resources, the Agency is empowered under Section 23 (1) of the Act to make regulations for the purpose of protecting public health or welfare and also to enhance the quality of water. This section also criminalizes any act which is in breach or violation of the regulations made pursuant to subsection (1) above. To this extent, subsection 3 provides that a person who violates the provisions of the said regulations, commits an offence and shall on conviction, be liable to pay a fine not exceeding N50, 000 or to imprisonment for a term not exceeding one year or to both of them and an additional fine of N5, 000 for every day the offence subsists. In the case of a body corporate, it shall on conviction, be liable to a fine not exceeding N50, 000 and additional fine of N10, 000 for every day the offence subsists. (iii) Air Resources Section 20 (1) of N.E.S.R.E.A. Act 2007 provides that the Agency may make regulations for the protection and enhancement of the quality of Nigeria’s air resources, so as to promote public health or welfare. These regulations should be geared towards the control of concentration of substances in the air which separately or in combination are likely to result in damage or deterioration of property or of human, animal, marine or plant health. In effect, the subsection empowers the Agency 28 to make regulations and standards that would prevent and combat various atmospheric pollutions. In line with the similar provisions on land and water resources, subsection 3 of this section creates an offence for the violation of the regulations made pursuant to subsection 1. It provides that any person who violates the said regulations commits an offence and shall on conviction, be liable to a fine not exceeding N200, 000 or to imprisonment for a term not exceeding one year or to both of them, and an additional fine of N20, 000 for every day the offence subsists. Under Subsection 4, where the offender is a body corporate, it shall on conviction be liable to a fine not exceeding N2, 000, 000 and an additional fine of N50, 000 for every day the offence subsists. (iv) Prevention and Control of Noise N.E.S.R.E.A is empowered under Section 22 (1) of the Establishment Act to make regulations on noise emission, control and abatement so as to preserve and maintain public health and welfare. The Agency shall also enforce compliance with such regulations, and further, recommend programmes to control noise originating from industrial, commercial, domestic, sports, recreational, transportation or other similar activities. (See subsection 2) In the enforcement of the regulations made pursuant to subsection (1) above, a person who violates the said regulations commits an offence, for which he is liable upon conviction to pay a fine not exceeding N50, 000 or to imprisonment for a term not exceeding one year or to both of them in addition to a fine of N5, 000 for every day the offence subsists. (See subsection 3) In the case of an offender which is a body corporate, it shall on conviction be liable to pay a fine not exceeding N500, 000 in addition to a fine of N10, 000 for every day the offence subsists. (See subsection 4) (v) Discharging of Hazardous Substances Here Section 27 (1) of the Act creates an offence as follows: 29 “The discharge in such harmful quantities of any hazardous substance into the air or upon the land and the waters of Nigeria or at the adjoining shorelines is prohibited, except where such discharge is permitted or authorized under any law in force in Nigeria.” Before moving further on this offence, I should think that the offence set out above compliments the offence created in Section 1 of the Harmful Waste (Special Criminal Provisions) Act Cap H1 LFN 2004. Eventhough Cap H1 talks about “harmful waste” and Section 27 (1) above deals with “hazardous substance” both terms in my opinion convey almost the same meaning. Any hazardous substance can qualify as harmful waste as long as it is a threat to human health, and vice versa. It is a matter of degree of emission. Otherwise why would one discharge or dispose of hazardous substance or material if it is not waste product? If the hazardous substance was still useful or valuable, it would be retained and put to use rather than being discharged, and to that extent is not a hazardous waste. Accordingly the meaning given to “harmful waste” in Section 15 of cap H1, covers or extends to “hazardous substance” in Section 27 (1) of N.E.S.R.E.A. Act. In the said Section 15, “harmful waste” means “………any injurious, poisonous, toxic or noxious substance and, in particular, includes nuclear waste emitting any radioactive substance if the waste in such quantity, whether with any other consignment of the same or of different substance, as to subject any person to the risk of death, fatal injury or incurable impairment of physical or mental health …………” Hazardous substance has however been defined in Section 37 of N.E.S.R.E.A. Act. It means: 30 “…………….any chemical, physical or biological radioactive materials that pose a threat to human health and the environment………….” In fact, Section 27 (5) of N.E.S.R.E.A. Act makes it clear that the provisions of Cap H1 shall apply in respect of hazardous substance constituting harmful waste. Under Section 27 (2), a person who violates the provisions of subsection (1) above commits an offence and is liable on conviction to a fine not exceeding N1, 000.000 or to imprisonment for a term not exceeding 5 years. For a body corporate offender, that penalty for violation of the offence in subsection 1 above shall on conviction be a fine not exceeding N1, 000.000 and an additional fine of N50, 000 for every day the offence subsists (see Section 27 (3) SELF ASSESSMENT EXERCISE 1 1. What are objectives and functions of N.E.S.R.E.A? 2. To what extent does the N.E.S.R.E.A Act provide for the protection of land, water and air resources in our environment? 3. Discuss the pollution preventive and control measures concerning noise and the discharge of hazardous substances under the N.E.S.R.E.A. Act. 4.2 Prevention of Pollution in the Oil And Gas Sector We shall now devote our attention to pollution control measures in the oil and gas sector. 31 4.2.1 THE PETROLEUM ACT This legislation marked the beginning of true indigenous exercise of sovereignty over mineral and natural resources in Nigeria. It is a statutory enactment, which, among other things, makes provisions for the Minister in charge of Petroleum Resources to make regulations on various matters, including pollution. Section 9 (1) of the Act sets the stage thus: “The Minister may make regulations………….. (b) providing generally for matters relating to licences and leases granted under this Act and operations carried on thereunder, including …………………………….. (iii) the prevention of pollution of water courses and the atmosphere. The above section has therefore empowered the Minister to make regulations on diverse matters, including the prevention of pollution of the environment. What are these regulations, and how far do they go in preventing pollution? These questions will form the basis of our discussion in the following paragraphs of this unit. 4.2.2 PETROLEUM (DRILLING AND PRODUCTION) REGULATIONS These regulations are aimed at protecting parts of the environment that are most vulnerable to pollution arising from oil prospecting and mining activities. These include water resources, trees, land and air. Starting with water resources, paragraph 25 of the Regulations provides thus: “The licensee or lessee shall adopt all practicable precautions including the provision of up-to-date equipment approved by the Director of Petroleum Resources to prevent the pollution of inland waters, rivers, water courses, the 32 territorial waters of Nigeria, or the high seas by oil, mud or other fluids or substances which might contaminate the water, banks or shore line or which might cause harm or destruction to fresh water or marine life, and where any such pollution occurs or has occurred, shall take prompt steps to control and, if possible, end it.” When rivers or inland waters like streams and lakes are polluted, fishing in those waters is either significantly reduced or entirely destroyed. The right to fishing has always been recognised by the law, and protected from any interference, in particular pollution. To this extent paragraph 23 of Regulations provides that: “If the licensee or lessee exercises the rights conferred by his licence or lease in such a manner as unreasonably to interfere with the exercise of any fishing rights, he shall pay adequate compensation therefore to any person injured by the exercise of those first mentioned rights.” The right to fish in tidal waters has long been recognised in our law, and also, has been recently reaffirmed in the following cases: (i) ELF NIGERIA LIMITED V OPERA SILLO (1994) 6 N.W.L.R. (Part 350) 258 (ii) S.P.D.C. V ADAMKUE (2003) 11 N.W.L.R. (Part 832) 533 In Elf’s case above, the Court awarded compensation to the Sillo family for loss of fishing right occasioned by oil pollution in the form of oil spill which poured silt into the tidal rivers where they carried out their occupation as fishermen. 33 On protection of productive trees, paragraph 21 provides: (1) “The licensee or lessee shall not cut or take any protected tree except with the consent of the state authority and on payment of the appropriate fees and royalties.” (2) “If the licensee or lessee cuts down or takes any other productive tree, he shall pay fair and adequate compensation to the owner thereof…………….” Again, these regulations extend protection to objects of veneration. These may appear either in the form of trees or ancient dwelling. But in which ever form it appears, paragraph 22 prohibits a licensee or lessee from injuring or destroying it except with the permission of the State authority. The question whether any thing is an object of veneration or not shall be decided by the State authority, of which the power lies with the Governor. On protection of land, paragraph 36 of Schedule 1 of the Protection Act provides: “ The holder of an oil exploration licence, oil prospecting licence or oil mining lease shall, in addition to any liability for compensation to which he may be subject under any other provision of this Act, be liable to pay fair and adequate compensation for the disturbance of surface or other rights to any person who owns or is in lawful occupation of the licensed or leased lands.” See the case of SHELL PETROLEUM DEVELOPMENT CO NIG LTD V FARAH (1995) 3 N.W.L.R. (Part 382) 48, where the Court of Appeal considered this provision in the Petroleum Act, in awarding compensation to the Respondents who suffered injury and damage as a result of oil spill. 34 4.2.3 MINERALS AND MINING ACT Section 99 of this post military legislation also contains ample provision on the protection of the environment from oil mining related pollution. The section provides that a holder of a mining title shall in the exercise of its rights under the license or lease have regard to the effect of the mining operations on the environment, and take such steps as may be necessary to prevent pollution of the environment resulting from the mining operations. See also Section 65 on prohibition of pollution of waters by mining operations. 4.2.4. OIL IN NAVIGABLE WATERS ACT To prevent and control the pollution of our water resources by crude oil, this legislation sets out ample provisions in the following terms: 1. By Section 1 of the Act, an offence is committed when oil is discharged from a Nigerian ship into part of the sea which is a prohibited sea area or if any mixture containing not less than 100 parts of oil is discharged from such a ship into that part of the sea. Here the guilty party is either the master or the owner of the ship in question. The prohibited sea area in this section forms part of international waters. 2. Under Section 3 of the Act, an offence is also committed where the owner or master of a vessel, or the occupier of a place on land, or the operator in charge of an apparatus for the transfer of oil from a vessel, discharges oil into Nigerian territorial waters from his vessel, place on land or his apparatus respectively. 35 3. To enforce compliance with the above pollution prevention measures, an offence is also created under Section 5 (5) of this Act for failure to install oil pollution prevention and control equipments on ships in accordance with regulations made under this Act. Again the guilty party is either the owner or master. The penalty on conviction of any of the offences stated above is imposition of fine (See Section 6 of the Act) 4.2.5. OIL TERMINAL DUES ACT This legislation essentially deals with the discharge or unloading of oil at oil terminals. The objective here is to ensure that in the course of such operations, oil is not discharged or spilled into our territorial waters which would pollute them. To this extent Section 6 (2) of the Act creates an offence similar to those in Sections 1 and 3 of the Oil in Navigable Waters Act. This section 6 provides that where oil or mixture containing oil is discharged into any part of our territorial waters from a pipeline or any apparatus used for loading and unloading of oil from a vessel, or as a result of operation for evacuating oil, the owner of the pipeline or apparatus or the operator in charge of the evacuation, as the case may be, shall be guilty of an offence under Section 3 of Cap 06 L.F.N. 2004, ie Oil in Navigable Waters Act. That offence has already been set out above. The same penalty as provided by Section 6 of Cap 06 awaits the guilty party here under Section 6 (3) of Oil Terminal Dues Act. It can therefore, be seen that these pollution prevention provisions compliment each other. 4.2.6 ASSOCIATED GAS RE-INJECTION ACT On protection of the air Section 3 of this Act provides that subject to subsection 2 of this section, no company engaged in the production of oil and gas in Nigeria shall after 1st January 1984 flare gas produced in association with oil without the permission in 36 writing of the Minister. There can be no doubt that this provision is aimed at the protection of our air resources. 4.2.7 OIL PIPELINE ACT Section 14 of this Act provides that a licence for the establishment and maintenance of an Oil Pipeline shall not, unless expressly permitted, be exercised in such a manner to affect the flow of water required for domestic, industrial or irrigational use or make such deposit in a waterway that would cause flooding or erosion. 4.2.8 ESTABLISHMENT OF ANTI-POLLUTION AGENCY FOR THE OIL AND GAS SECTOR IN NIGERIA Some time in early 2010, a National Oil Spill and Detection Response Agency (N.O.S.D.R.A.) was established under the Federal Ministry of Environment, and a National Oil Spill Contingency Plan (NOSCP) approved by the Executive Council of the Federal Government. N.O.S.D.R.A. would manage the contingency plan on oil spill under the terms of the new programme on combating environmental pollution caused by oil operations. The approval of the contingency plan and the establishment of the Agency were in compliance with the International Convention on Oil Pollution Preparedness Response and Cooperation (OPPRC) of which Nigeria is a signatory. This convention enjoins signatory nations to intensify efforts towards the compliance, monitoring and enforcement of oil and gas regulations and standards. SELF ASSESSMENT EXERCISE 2 1. Explain the provisions made by the Petroleum (Drilling and Production) Regulations for protection of the environment from oil mining pollution. 37 5. CONCLUSION This unit has dealt with the control and preventive measures on environmental pollution in Nigerian Law. These measures are contained in various legislative or statutory enactment set out in the introductory part of this unit. It has also been seen that some of these legislations, especially N.E.S.R.E.A. Act 2007, deals generally with the prevention and control of pollution except in the oil and gas sector. At the same, we explained that there are specific legislations which deal exclusively with oil pollution. In the next unit, that is unit 3, we shall discuss the non-statutory control of oil pollution. By this we shall engage in that aspect of the common law where the courts have, through their pronouncements, provided a check on the manner of oil exploration which result in pollution and consequent damage and injury to proprietary rights. Here, rather than create an offence, a cause of action is recognised by the court. 38 6. SUMMARY it has been the principal aim and objective of Unit 2 of Module 1, to identify, explain and discuss the various legislations governing the prevention and control of pollution generally, and specifically in Nigerian Law. N.E.S.R.E.A. Act 2007 was our focus on environmental protection and enforcement generally. In relation to the oil and gas sector, we discussed the relevant provisions of some Statutes. In doing so, we saw that there are sections in these statutes which create offences for certain acts done in violation of regulations seeking to protect the environment from pollution. 39 7. TUTOR MARKED ASSIGNMENT QUESTION 1.Apart from the Petroleum Act and Regulations made thereunder, there are ample provisions in other legislations for combating oil pollution in Nigeria. Discuss 40 8. REFERENCE/FURTHER READING 1. Environmental Law in Nigeria: Theory and Practice – by Lawrence Atsegbua, Vincent Akpotaire and Folorin Dimowo. 2. Oil and Gas Law in Nigeria – by Yinka Omorogbe 3. Constitution of the Federal Republic of Nigeria 1999, as amended. 4. N.E.S.R.E.A. Act 2007. 5. Petroleum Act, cap P10 LFN 2004 6. Petroleum (Drilling and Production) Regulations. 7. Minerals and Mining Act, cap M 12 LFN 2004. 8. Quality of Life and Environment in Environmental Laws in Nigeria – by Mowoe K.M.(edited by Professor J.A. Omotola) Ibadan Caxton Press (WA) Ltd 1990. 9 /http/ www. en. wikipedia. org. /wiki/Petroleum Industry in Nigeria. 41 OIL AND GAS LAW II LAW 412 MODULE 1 UNIT 3 Table of Contents 1. Introduction 2. Objectives 3. Main Content 4. Conclusion 5. Summary 6. Tutor Marked Assignment 7. Reference/Further Reading 42 NON–STATUTORY CONTROL OF OIL POLLUTION IN NIGERIA INTRODUCTION In Unit 2 of this Module, we discussed the statutory provisions in Nigerian law aimed at preventing and controlling the pollution of the environment from oil mining operations. Aside from these statutes provisions, there are also established legal principles which are equally intended to keep oil operators on alert, and ensure that they carry out their activities with utmost regard for the environment, or face the consequences in law suits for compensation. The result, therefore, is that should these operators conduct their activities unreasonably or recklessly as to inflict injury or harm on proprietary interest like farmlands, water courses in the form of lakes and streams, those affected can take out an action in negligence, nuisance, the rule in Rylands V Fletcher or even trespass. These are actions recognised at common law, and now form part of the law of tort. Essentially what the courts have done here is to extend the application of these established principles to cover incidents of oil pollution. To this extent, it can therefore be said that these body of legal principles compliment the statutory provisions discussed in unit 2, in preventing and controlling oil pollution. These common law rights and actions will form the focus of this Unit. What then are the objectives of this unit? 43 2. COURSE OBJECTIVES At the end of this study unit, the student should be able: - To identify the various non-statutory legal provisions pertaining to oil pollution, and their prevention and control. - To understand and appreciate the common law rights and actions pertaining to incidents of oil pollution and their prevention and control. - To understand and appreciate the application of the tort of negligence to incidents of oil pollution and claims for compensation. - To understand and appreciate the application of the principles of the law on nuisance to incidents of oil pollution and claims for compensation. - To understand and appreciate the application of the principles of the law in the Rule in Rylands V Fletcher to incidents of oil pollution and claims for compensation. 44 3.0 MAIN CONTENT 3.1 Negligence 3.1 Introduction 3.2 Definition 3.3 Case law in support 3.4 Doctrine of res ipsa loquitor 3.2 Nuisance 3.2.1 Definition 3.2.2 Case law in support 3.3 The Rule Rylands V Fletcher 3.3.1 Definition 3.3.2 Case law in support 3.1 NEGLIGENCE 3.1 INTRODUCTION At common law, a person can initiate an action in negligence for the conduct or wrongdoing of another person, which results in injury or damage to that person. It is clear now in our law, that the tort of negligence extends to injuries arising from oil operations damage. An oil company cannot deny the fact that, where owing to the negligence of its workers or agents, there is an oil spillage which destroys farmlands, fish ponds, lakes, creeks, channels or even residential building. In most cases where it has denied liability, it is common to shift the blame for the event or mishap to saboteurs in order to evoke sympathy for itself and also to tarnish the image of the community. Sometimes it is blamed on miscreants who are looking for petroleum to steal. In Nigeria, today, the law of negligence is well settled as an aspect of our law. If the law is to be restated, it is that a person owes other persons within his contemplation, a duty of care to exercise reasonable care in what he does, and not to do same in a manner that is likely to injure these other persons. 3.2.1 DEFINITION Negligence has been further defined as lack of proper care and attention, careless behaviour or conduct. It is complete when three conditions are satisfied, namely; 1. The Defendant owes a duty of care to the Plaintiff; 2. The Defendant has acted or spoken in such a way as to breach that duty of care; 3. The Plaintiff suffered damages arising from the breach. The above principle of liability in the tort of negligence was expounded in the well known English case of DONOGHUE V STEVENSON (1932) A.C. 562, and has since been followed and adopted in a litany of cases, both foreign and local. See: AGBONMAGBE BANK LTD V C.F.A.O. (1966) 1 ALL N.L.R 140 OYIDIOBU V OKECHUKWU (1972) 5 S.C. 191 ORHUE V N.E.P.A. (1998) 7 N.W.L.R. (Part 557) 187 45 NGILARI V MOTHERCAT LIMITED (1999) 13 N.W.L.R. (Part 636) 626 ODINAKA & ANOR V MOGHALU (1992) 4 N.W.L.R. (Part 233) 1 INTERNATIONAL MESSENGERS NIG. LTD. V DAVID NWACHUKWU (2004) 6-7 S.C. 88 U.T.B. (NIG) V OZOEMENA (2007) 3 N.W.L.R. (Part 1022) 448 Apart from these cases, the above principle has further been codified into the Torts Law of various States of the Federation. In Anambra State, Section 218 of the Torts Law provides as follows: “Subject to this law, every person shall have a duty to take reasonable care to avoid any act or omission which he is reasonably expected to foresee as likely to injure persons who are so closely and directly affected by his acts or omissions that he ought reasonably to have them in contemplation as being so affected when he is directing his mind to any such act or omission”. See also section 217 of the said Torts Law, Cap 135, Laws of Anambra State 1991. 3.1.3 CASE LAW IN SUPPORT Persons or communities in the oil producing areas of Nigeria, who have suffered one form of damager or another, now resort to an action in negligence for damages or compensation. It is a common law action but at the same time has statutory recognition. In the area of oil operations, cases have emerged where an individual or an entire community sued the Oil Company for negligence, arising from its activities. However, evidential burden remains a major hurdle on the path of individuals or groups seeking redress under this law. Case law has shown that a plaintiff in a typical oil pollution case in the oil producing areas in the Niger Delta, may not adduce enough evidence to persuade the court to hold that the oil company polluter acted unreasonably in the circumstance that led to the cause of action. Indeed many of these individuals are not knowledgeable enough about the processes involved in oil operations, and therefore not in a position to determine the actual cause of the pollution or danger. In the case of ANTHONY ATUBIE V SHELL B.P. DEVLOPMENT CO. OF NIGERIA LTD. (Unreported) UCH/48/73 of 12th November 1974, a claim for damages arising from defendant’s oil operations which led to the escape of crude oil, gas and other chemicals from their pipelines and consequently polluted the plaintiff’s farmland and lakes and killing the fishes therein, failed for lack of evidence of negligence on the part of the defendant. Similarly in CHINDA V SHELL B.P.DEVELOPMENT CO OF NIGERIA LTD (Unreported) 1974, a claim also for damages in negligence arising from the defendant’s oil and drilling operations involving gas flaring, which led to damage to the plaintiff’s land, houses and economic trees, failed for lack of evidence of negligence. But in CHIEF SIMON ONAJOKE V SEISMOGRAPH SERVICE LTD, the claim for damages for negligence succeeded after the court found that there was evidence of same on the part of the defendant in the course of blasting operations which resulted in damage to the Plaintiff’s buildings. Another case worthy of mention here is that of SHELL PETROLEUM DEVELOPMENT CO NIGERIA LTD V AMBAH (1999) 3 N.W.L.R. (Part 593) 1. Here the Plaintiffs/Respondents claimed the sum of N30, 000.00 as damages by way of compensation for the total or permanent destruction of their family’s fish ponds, fish lakes, fish channels and creeks lying and situate at Asesaoba near Beniseide oil fields. The said destruction occurred when mud dredged from the land in the possession of the Defendant oil company covered the said fish ponds and lakes. According to the plaintiffs, this incident deprived the entire family of their means of livelihood. There was no doubt that the plaintiffs claim was based on negligence. The Supreme Court held that the plaintiff’s case, being one for total destruction of property, namely fish ponds, lakes and channels, as a result of the wrongful act of the Defendant/Appellant, and same having been accepted by the Defendant/Respondent, the Plaintiffs/Respondent’s family was only entitled to the market value of the property destroyed and no more. The court further held that it was an error for the Courts below to have awarded the Plaintiffs/Respondents special damages for continuing loss of income from 1976 when the injury occurred (cause of action) until the date of judgment in 1987. This was because the Plaintiff/Respondent never pleaded same, nor was any evidence given in support. But the most important aspect of this case in this area of the law, is that the Supreme Court, the apex court never queried the basis or authority or quo warranto of the Plaintiff’s claim, namely negligence. The same apex court in the earlier case of ELF NIGERIA LIMITED V OPERE SILLO (1994) 6 N.W.L.R. (Part 350) 258, in which the Plaintiff/Respondent’s family claimed compensation for loss of fishing rights as a result of the oil operations of the Appellant company, held that they were so entitled. This judgment and that in AMBAH’S CASE (Supra) are indisputable authorities, that apart from statutory provisions enumerated above, an action can be maintained by a person in negligence at common law for injuries arising from oil operations damage. See also OTOKO V S.P.D.C. (1990) 6 N.W.L.R. (Part 159) 693. OGAILE V S.P.D.C. (1997) 1 N.W.L.R (Part 480) Page 148 In another related case, namely SHELL PETROLEUM DEVELOPMENT CO.NIG.LTD. V TIEBO VII & ORS (2005) 3 – 4 S.C. (2005), Plaintiffs/Respondents claimed substantial damages for the negligence of the Defendant/Appellant oil company, which resulted in a major oil spillage leading to the pollution of the Plaintiff’s farmlands, swamps, creeks, river, fish ponds, fishing nets, raffia palms and juju shrines. They claimed 46 specific amounts as damages for loss of fishing rights, loss of drinking water, medical expenses incurred, damage and hazards from the pollution of the environment and general inconveniences. The Supreme Court first of all held that the State High Court at Yenagoa, which tried the case had the jurisdiction at that time to do so. Indeed, the judgment of the trial High Court was delivered on the 27th February 1991. The jurisdiction to do so was only ousted on the 17th November 1993. According to OGUNTADE J.S.C., who delivered the leading judgment at page 148 of the Report: “The result is that the Rivers State High Court had jurisdiction to entertain Plaintiffs’ suit and that jurisdiction was not in any way impaired between the commencement of the action on 6th June 1988, and the delivery of judgment on 27th February 1991”. The above decision notwithstanding, jurisdiction over matters arising from oil mining or operations, including pollution cases, is now vested in the Federal High Court. On the issue of quantum of damages, the apex court affirmed the five million naira (N5, 000.000.00) general damages as compensation for the loss suffered, which was awarded by the trial court as being in order. But it set aside the additional awards of N400, 000.00 general damages for damage to raffia and N600, 000.00 general damages for loss of drinking water, for lack of evidence. It is, therefore, clear from what has been stated above that victims of oil operations damage have a right to initiate proceedings under the common law of negligence for losses suffered as a result of oil operations. To succeed, however, they must establish that the discharge or escape of oil was as a result of the wrongful act of the oil company, viz failure to comply with good oil field practice, which resulted in a breach of duty of care and consequently led to injury of losses. 4.1.4. THE DOCTRINE RES IPSA LOQUITOR Sometimes the evidence led may point to the conclusion that the act complained of could not have happened without the negligence of the defendant. Where this is the case, the principle of res ipsa loquitor will apply. In the case of SHELL PETROLEUM DEVELOPMENT CO.NIG LTD V AMARO & ORS (2000) 10 N.W.L.R. (Part 675) 248 at 279 the Court of Appeal, per AKINTAN J.C.A. (as he then was) said: `“The maxim res ispa loquitor applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused”. The effect of the application of the principle of res ispa loquitor is that the onus of proof of negligence normally placed or cast on the plaintiff by the rules of evidence merely shifts to the defendant. The defendant is, therefore, required to establish that there was infact no negligence or want of care on his part. See: BELLO V A.G OF OYO STATE (1986) 12 S.C. 93 In such circumstances, the plaintiff merely proves the resultant accident and injury and then asks the court to infer from the proven evidence, negligence on the part of the defendant. Reliance on the principle of res ispa loquitor is indeed a confession by the plaintiff that he has no direct and affirmative evidence of negligence complained of against the defendant, but that the surrounding circumstances establish such negligence. It is, therefore, clear from the foregoing that where there is widespread oil spillage causing substantial damage, for which the victims could not explain the cause or origin, they can rely on this principle to establish negligence against the oil company involved. 3.2 NUISANCE 3.2.1 DEFINITION In addition to the actions available to victims of oil operations damages in negligence and under the Rule in Rylands V Fletcher, such persons can also maintain an action in nuisance. Indeed it is common to file one suit in court based on negligence, rule in Rylands and Fletcher and nuisance at the same time. What then is nuisance? Private nuisance consists in the unreasonable interference with a person’s use or enjoyment of land, or of any right or interest in the said land. It is a civil wrong like negligence or that recognized under the Rule in Rylands V Fletcher. Nuisance includes any wrongful act or omission which destroys or deteriorates individual property or interferes with the lawful use or enjoyment of same. It should be borne in mind that an otherwise lawful act may result in nuisance where it interferes with another person’s quiet enjoyment of his property. This is where the court strikes a balance between the competing rights and interests of the parties. In other words, the court would ask itself this question; what is the extent of the right of an occupier of land to enjoy same on one hand, and the extent of the right of a neighbour to enjoy his own land, without each interfering with the right of the other. 47 As with negligence, the tort of nuisance has equally received statutory recognition in the laws of various States of the Federation. Here again in Anambra State, sections 251 and 254 of the Torts Law of Anambra State, Cap 135 enact the principle. Section 251 provides as follows: “A person who does an act or makes an omission or otherwise creates a condition which unreasonably interferes with another persons use of land, or of a right over or interest in land shall subject to this part of this law, be liable to such person for a civil wrong known as nuisance”. Section 254 (1) further provides: “In order to constitute a nuisance, there must be:- (a) a wrongful act or omission; (b) damage actual or presumed; Section 254 (2) also provides: “Whether an act or omission constitutes a nuisance depends on the circumstances of the particular case including the time of the act complained of, the place and manner of its commission, and whether it is transitory, permanent, occasional, continuous”. See also U.T.B. (Nig.) V OZOEMENA (Supra) 3.2.2 CASE LAW IN SUPPORT In the oil and gas sector where oil spillage, gas flaring as well as other forms of oil operations damage or mishap are a common feature, victims have also embraced this form of action, together with negligence, to claim compensation. In such cases, the courts are saddled with the task of striking a balance between the rights of the oil companies to use of land granted to them as licensees or lessees for oil operations without interference, on one hand, and the rights of the host communities to live in a peaceful, quiet and pollution –free environment also without any interference from anybody. From all that has been said above, it is manifestly clear as it is in the case of negligence, that whether an act or omission amounts to nuisance is a question of fact in each case. In NWADIARO V SHELL PETROLEUM DEVELOPMENT CO. NIGERIA LTD. (1990) 5 N.W.L.R. (Part 150) 322 the Court of Appeal upheld a claim which was founded on nuisance. The plaintiffs had alleged that the defendant’s oil operations led to a blockade of their creeks, ponds and lakes. In TEBITE V NIGERIAN MARITIME TRADING CO. LTD. (1974), a claim for damages arising from nuisance caused by loud and excessive noise as well as emission of noxious fumes from machines operated by the defendant company succeeded. So also in AIROBUYI V NIGERIAN PIPELINE LIMITED (1976) 6 E.C.S.L.R. 53, where a claim for damages for nuisance caused by the defendant’s sand blasting and pipecoating operations, which produced dust and smoke and which in turn damaged the plaintiff’s house in addition to causing him discomfort as well as posing danger to health, succeeded. The Court has held in the case of OLADEHIN V CONTINENTAL TEXTILE MILLS LTD (1978) 2 S.C. 23 that the defendant’s industrial operations which produced poisonous and contaminated water, and which in turn caused serious damage to the Plaintiff’s building, rendered it liable for damages in nuisance. There is also the case of ADENIRAN & ANOR V INTER-LAND TRANSPORT LIMITED (1991) 9 N.W.L.R.(Part 214) 155. The cause of action were noise, vibration and clustered obstruction of the roads all arising from the defendant’s building operations. The plaintiff’s claim for damages for nuisance succeeded. This was inspite of the defendant’s contention that the injury or damage complained of by the plaintiff was a specie of public nuisance, and as such no private individual can sue without the consent of the ATTORNEY GENERAL, or without joining him as a party. The Supreme Court affirmatively held that Section 6 (6) b of the 1999 Constitution allows victims of environmental public nuisance, including the oil and gas sector, to institute legal actions without the A.G’s consent. 3.3. THE RULE IN RYLANDS V FLETCHER 3.3.1. DEFINITION Victims of oil operations damage can also maintain an action for compensation under the Rule in RYLANDS V FLETCHER. Under this rule, a person who, for his own purpose brings on his land and collects and keeps there anything likely to do mischief if it escapes, is prima facie answerable for all the damage which is the natural consequence of its escape. Things which if they escape are likely to cause mischief include not only inherently dangerous materials like petrol, gas, fire, or chemical but also relatively innocuous things like water, crude oil, sewage and mud. This principles of law derived its name and identity from the old English case of Rylands V Fletcher (1805) where BLACKBURN J., enunciated what has become known in judicial pronouncement as the rule of strict or absolute liability in tort. In that case, the 48 defendants were held strictly liable for the damage caused by water, which escaped from their land and flooded the plaintiff’s mine. Eventhough they were not found liable in negligence or nuisance, they were held strictly liable for their conduct. 3.3.2 Application and Case Law in Support It is now a well established principle that before the rule can apply, the underlisted conditions must exist. These are: (i) Defendant must be an owner or occupier of the land and therefore in control of the thing on the land, such as oil and gas. (ii) Defendant must bring on his land and collect and keep on the said land something which is dangerous in the sense of being likely to cause mischief if it escapes. For example, crude oil, refined petroleum, chemical, gas, mud etc. In the case of UMUDGE V SHELL B.P. NIG LTD (1975) 11 S.C. 155, the plaintiff succeeded in establishing a claim based on this rule, when crude oil and other chemicals damaged his fish pond. (iii) Defendant must engage in a non-natural use of land which causes the injury complained of. See: CHIEF OTUKU V SHELL B.P. (1985) – Where it was held that placing of manifold on land which results in oil overflow consequently polluting the vegetation and fish ponds was a non-natural use of land. In SAM IKPEDE V SHELL B.P. (NIG) LTD (Supra) the plaintiff who suffered damages as a result of the escape of crude oil and other chemicals from pipelines belonging to the defendant’s company, relied on the rule and claimed damages. It was held, per OVIE WHISKEY; that it is a non- natural use of land to lay pipes through forests and swamps for the carriage of crude oil. (iv) Escape: there must be an escape of the accumulated substance from the land where it is kept to a place outside. In other words it must be an escape from a place where the defendant has occupation or control over land to a place which is outside his occupation or control. In the case of UMUDGE V SHELL B.P.NIG. LTD (Supra) the Supreme Court held that the defendant oil company was liable under the rule in Rylands V Fletcher because, as the trial court found, the crude oil which was collected and kept in a pit under the occupation and control of the defendant escaped onto the adjoining land of plaintiff where it damaged his fish pond and lake. See also S.P.D.C. V ISAIAH (Supra), S.P.D.C. V TIEBO VII (Supra) 49 4. CONCLUSION It can be seen from our discussions above, that these principles in the law of torts have been used and applied by the courts for the protection of our environment. This is because when an individual or an entire community complains or complain that his or their farmlands, streams, lakes, fish ponds have been damaged or rendered valueless, it is part of our environment that is being destroyed or degraded. Inasmuch as the victims of these incidents are entitled to seek redress by way of compensation in court for such injury under these body of principles, they equally remain a watchdog upon the activities of multinational oil companies to conduct their operations reasonably and with such practicable precautions. And together with the provisions in the various statutes or legislations discussed in Unit 2 of this module, they operate to prevent and control pollution in the oil and gas sector. 50 5. SUMMARY It has been the principal aim and objective of this unit to explain to the reader, the body of legal principles which the courts have often used for the protection of proprietary rights and interests from oil related pollution. These principles of law, which have their origins and foundations in judicial pronouncements (judicial precedents) compliment the statutory provisions that we discussed in Unit 2. Both are geared towards the protection of our environment from oil pollution. 51 6. TUTOR MARKED ASSIGNMENT QUESTION 1. Continental Oil Limited, a subsidiary of Continental Oil International, has for the past 40 years been extensively engaged in the exploration and protection of petroleum resources in the Republic of Mambila. In keeping with its policy of expansion, it has just acquired new oil rights leading to long term production of petroleum. In the course of its operations in the oil rich region of Bakassi, a major oil spill occurred which left a vast area of land belonging to the indigenes badly damaged, including residential houses and crops. These natives have now approached you for advice on how to proceed with their plight. They are particularly anxious to avoid protracted litigation which may ultimately affect the value of any compensation coming their way. Assume the position of their Solicitor and write a comprehensive legal opinion on the possible actions and remedies available to them at common law. 2. What do you understand by the Rule in Rylands V Fletcher, and does it operate in oil pollution cases? 3. Explain the principles of the law of Negligence in relation to pollution in the oil and gas sector. 52 7. REFERENCE/FURTHER READING 1. Oil and Gas Law in Nigeria – by Yinka Omorogbe. Malthouse Law Books 2. Environmental Law in Nigeria – Theory and Practice – by Lawrence Atsegbua, Vincent Akpotaire and Florin Dimowo. 53 OIL AND GAS LAW II LAW 412 MODULE 1 UNIT 4 Table of Contents 10.Introduction 2 Objectives 3 Main Content 4 Conclusion 5 Summary 6 Tutor Marked Assignment Questions 7 Reference/Further Reading 54 GAS FLARING: LEGISLATIVE AND JUDICIAL RESPONSE 1. INTRODUCTION It will be recalled that in our discussion on the incidents of oil pollution in Unit 1 of this Module, we stated that the process of gas flaring provides another means of pollution of the environment in the oil and gas industry. We had earlier noted in the same unit that oil spill arising from a variety of causes contributes mainly to oil pollution. In this unit, we shall go further to explain the nature of this process called gas flaring. We shall also explain the reasons underlying this process, and examine why, inspite of existing laws and regulations to control and ultimately abate this environmental menace, it has continued unabated with its harmful effects on the host communities and their environment. This will form our focus in this unit. In doing so, we shall draw your attention to a very important decision of the Federal High Court on the constitutionality of continued flaring of gas in the Nigerian oil fields. With this landmark judgment, a new angle has been introduced into the subject of oil pollution arising from gas flaring. It shows clearly the seriousness with which the courts are prepared to protect the citizens of Nigeria and their environment from oil related pollution. In the course of our discussion, we shall encounter the following legislations: 1. Associated Gas Re-injection Act 1979 2. Associated Gas Re-injection (Continued Flaring of Gas) Regulations 1984 3. Petroleum (Amendment) Act 1973 55 2. COURSE OBJECTIVES At the end of this study unit, the student should be able: - To identify the legislations and regulations governing the control of gas flaring in our oil fields. - To understand and appreciate the nature and reasons for gas flaring. - To understand and appreciate the efforts of Government to control gas flaring. - To understand and appreciate the provisions in the legislation and regulations governing gas flaring. - To understand and appreciate the effects of continued flaring of gas on the environment. - To understand and appreciate the activist approach of our courts in protecting the citizens and the environment from oil pollution arising from gas flaring. 56 3.0 MAIN CONTENT 3.1 Nature of gas flaring. 3.2 Reasons for gas flaring. 3.3 Government’s response to gas flaring. 3.4 Legislatures response to gas flaring. 3.5 Effects of gas flaring on the environment with its implications on human life, and the judicial response. 57 3.0 GAS FLARING AS AN ASPECT OF OIL OPERATIONS DAMAGE IN THE OIL PRODUCING AREAS OF NIGERIA 3.1. NATURE OF GAS FLARING Another aspect of oil operations activities, particularly in the Niger Delta, is the process of Gas flaring. It contributes enormously to the degradation of the environment, and has become a catalyst to global warming. There is now an awareness that if global warming is not checked, the environment will suffer untold and irreversible consequences. Already some consequences are being felt in the depletion of the ozone layer and melting Antarctic ice. Gas flaring involves the complex and unscientific burning and emitting of excess and unwanted gas gathered in an oil field production flow station sites into wastes. In the process of production of oil, the excess and unutilized quantities of gas are separated from the crude and rather than being stored for other useful purposes like generation of electricity, domestic use and even for the export market, are burnt away. It is estimated that Nigeria produces about 3 billion cubic feet of natural gas as co- product of raw crude oil. Out of this number about 2.2 billion cubic feet of the total gas produced jointly in the country by the M.N.O.C, namely S.P.D.C, N.A.O.C, TOTAL/EPNC, EXXON MOBIL PRODUCING UNLIMITED, TEXACO (OVERSEAS) NIGERIA PETROLEUM and CHEVRON NIGERIA LIMITED is flared daily mostly in the Niger Delta region of Nigeria. 3.2. REASONS FOR GAS FLARING In the course of oil drilling and production, associated gas is encounted, leaving the oil companies with three options, namely: 1. To separate and utilize it, 2. To re-inject it into the reservoir, 3. To flare it. 58 It has been said that the cost of separating associated gas from oil, for purposes of utilization is very high and prohibitive for oil companies. The often complicated process of separation involves the use and installation of powerful compressors for transmission of the gas. These are expensive to procure. In the same vein, re-injection of the associated gas into the reservoirs is also a costly venture which must be handled with utmost care and skill. The result is that oil companies are left with the option of flaring which has become comparatively cheaper. With the above state of affairs, flaring of gas has assumed alarming proportions in the oil fields of the Niger Delta, leaving in its wake a degradation of the environment. What has the government done to abate this menace, and how effective have these measures been? 3.3. GOVERNMENT RESPONSE TO GAS FLARING The Nigerian Government has over the years been conscious of the debilitating effect of gas flaring on the environment. Efforts therefore have been made to abate or at least control gas flaring. These can be summarized as follows: (i) Enactment of the Petroleum (Amendment) Act 1973 to enable the Government to collect associated gas free of charge at the flare sites. (ii) Enactment of the Associated Gas Re-injection Act 1979, the aim of which was to encourage re-injection of associated gas thereby minimizing flaring and hopefully end same by 1984. (iii) Imposition of penalty on gas flaring. (iv) Issuance of environmental guidelines to regulate the oil and gas operations. (v) The Associated Gas Framework Agreement which was initiated in 1991 introduced a set of financial incentives to the utilization of natural gas. 59 (vi) Establishment of a liquefied natural gas plant in Bonny, River State, by the Federal government in the 1990s, which has seen Nigeria, in partnership with MNOC, exporting gas mainly to Europe. It also is worthy of note here that Shell has recently unveiled an integrated oil and gas project in Gbaram Ubie in Yenogoa Local Government Area of Bayelsa State. The aim of this facility is mainly to deliver gas to new and existing power stations as well as the NLNG for export. But at the same time, the project will reduce routine gas flaring in the oil fields. 3.4. LEGISLATIVE RESPONSE TO GAS FLARING IN NIGERIA Initial legislative attempt to combat gas flaring in Nigeria came in the form of ASSOCIATED GAS RE-INJECTION ACT 1979. The aim of this piece of legislation was to compel all oil companies prospecting and producing oil and gas in Nigeria to submit preliminary programmes for gas reinjection and detailed plans for implementation of gas re-injection. These were to be submitted before the 1st April 1980. See Section 1 (a) and (b) and Section 2 of the Act. In addition to the above provisions, the Act specifically provides that all gas flaring in Nigeria should cease on or before the 1st January 1984. However, realising the operational difficulties some oil companies may face, coupled with the prohibitive cost of providing the facilities for re-injection of gas, the Act empowered the Minister under Section 1 of the Associated Gas Re-injection (Continued Flaring of Gas) Regulations 1984, to permit a company to flare gas in any particular field or fields at his discretion, if the company involved pays a sum as the Minister may from time to time prescribe. In effect, an Act that set out to ensure that gas flaring is brought to an end in our oil fields, succeeded in throwing up a scheme whereby oil companies would continue to flare gas on the payment of penalty. In practice, oil companies would prefer to pay the penalty, which in most cases are paltry, and flare gas, rather than embark on the costly utilization or re-injection process. The result then is that gas 60 flaring, which ought to have ceased as far back as 1984, continues unabated with its deleterious effect on the environment. Since the passing of the 1979 Act, no other legislation has been made in this area. Indeed, not until recently did the Federal Legislature turn its attention on this aspect of oil operations. Currently there is a bill in the Senate titled Gas Flaring (Prohibition and Punishment) Bill, which is still being subjected to legislative debate, which hopefully if it becomes law will finally put to an end to gas flaring in Nigeria. But as we await its outcome, the Upper House has given oil companies operating in Nigeria a December 31st 2010 deadline to end gas flaring. 3.5 EFFECT OF GAS FLARING ON THE ENVIRONMENT WITH ITS IMPLICATIONS ON HUMAN LIFE, AND THE JUDICIAL RESPONSE Gas flare emits a mixture of benzene and other toxic substances that are harmful to humans and the entire physical environment. Acid rain, another fallout of gas flare acidifies lakes, rivers and streams and damages vegetation. It also accelerates the decay of the roofing sheets and other building materials. It has been stated time and time again by Plaintiffs in suits involving gas flaring that it is a process that seriously pollutes the air, causes respiratory diseases and generally endangers and impairs their health. In particular the Plaintiff in the case of GBEMRE V SHELL PETROLEUM DEVELOPMENT CO NIG. LTD & ORS (2005) A.H.R.L.R 151, stated that the burning of gas by flaring in their community gives rise to the following: (a) Poisons and pollutes the environment as it leads to the emission of carbon dioxide and other cocktail of toxins that affect the health, lives and livelihood. (b) Exposes them to an increased risk of premature death, respiratory illness, asthma and cancer. 61 (c) Contributes to adverse climate change as it emits carbon dioxide and methane which causes warming of the environment and pollutes their food and water. (d) Causes painful breathing, chronic bronchitis, decreased lung function and death. (e) Reduces crop production and adversely impacts on their food security. (f) Causes acid rain, their corrugated house roofs are corroded by the composition of the rain that falls as a result of gas flaring. Acidic rain consequently acidifies their lakes and streams and damages their vegetation. (g) That so many natives of the community have died and countless others are suffering various sicknesses occasioned by the effects of gas flaring. Pursuant to the above averments, Plaintiffs claimed that the constitutional guarantee of right to life and dignity of human person enshrined in Sections 33 & 34 of the 1999 Constitution respectively, and available to them as citizens of Nigeria, includes the right to clean, poison-free and pollution free air and healthy environment conducive for human beings to reside in for their development and full enjoyment of life, which have been and are being wantonly violated and continuously threatened with persistent gas flaring activities of the respondents in their community in Delta State. The response of the court to these averments have both been positive and proactive, and it shows that the judiciary will not wait for the legislature to show the way forward. The Federal High Court that heard the matter agreed with the Plaintiffs and granted their prayers and reliefs in the form of Declarations namely: (1) That the continuing flaring of gas in the course of exploration and production activities in the Applicants community constituted a violation of 62 their fundamental rights to life and dignity of human person guaranteed by Sections 33(1) and 34(1) of the 1999 Constitution and reinforced by articles 4, 16 and 24 of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act Cap A9 L.F.N. 2004. (2) Declaration that the provisions of Section 3(2), and (b) of the Associated Gas Re-injection Act 1979 now Cap A 25 Volume 1, Law of the Federation 2004 and Section 1 of the Associated Gas Re-injection (Continued flaring of gas) Regulations 1984, under which the continued flaring of gas in Nigeria may be allowed are inconsistent with the Applicant’s right to life and dignity of human person enshrined in Sections 33(1) and 34(1) of the Constitution, and articles 4, 16 and 24 of the African Charter on Human Peoples’ Right (Ratification and Enforcement) Act Cap A9, L.F.N.2004, and are therefore unconstitutional, null and void by virtue of Section 1(3) of the same Constitution. An order of perpetual injunction restraining the 1st and 2nd respondents by themselves or their agents, servants, contractors or workers or otherwise howsoever from further flaring of gas in the applicant’s said community. 63 4. CONCLUSION You can see from our discussions above that the flaring of gas during oil production in the oil fields, contributes to the pollution of the environment. The extent of this man-made alteration in the quality of the environment is not limited to the atmosphere, but also affects land resources, water resources, residential buildings etc. The process has also been identified as a major contributor to global warming. You have also seen that the different arms of governments in Nigeria have not been indifferent to this oil operations damage. But far more active and vigorous is the judicial pronouncement in 2005 that the continued flaring of gas in our oil fields constitutes a violation of fundamental rights guaranteed by Sections 33 and 34 of our Constitution, as amended. To that extent, the provisions in the governing legislations and regulations, which allow gas flaring through Ministerial permit, being inconsistent with Sections 33 and 34 above, are unconstitutional, null and void. Notwithstanding this judicial pronouncement, gas flaring has continued in our fields. 64 5. SUMMARY By way of summary, we can say that the discussions or lecture in this unit of module 1 has been designed to inform the reader about another source of pollution in the oil and gas industry. This is known as gas flaring. I believe that we have been able to explain the nature of this oil operation process, which has become a contributor to the pollution of our environment. It is also my belief that, together with our discussions in unit 1, 2 and 3, the reader will be in a better position to understand and appreciate, not only the relationship between pollution and the environment generally, but particularly in the oil and gas industry. 65 6. TUTOR MARKED ASSIGNMENT QUESTIONS 1. What do you understand by Gas Flaring in oil operations and how does it affect the environment? 2. How would you describe the response of our court to gas flaring in Nigerian Oil fields? 3. To what extent has our government gone in protecting the environment from oil pollution in the nature of gas flaring? 66 7. REFERENCE/FURTHER READING 1.Oil and Gas Law in Nigeria – by Yinka Omorogbe. Malthouse Law Books OIL AND GAS LAW II LAW 412 MODULE 1 UNIT 5 Table of Contents 1. Introduction 2. Objectives 3. Main Content 4. Conclusion 5. Summary 6. Tutor Marked Assignment Questions 7. Reference/Further Reading 67 COURTS JURISDICTION ON OIL POLLUTION MATTERS 1. INTRODUCTION The power or jurisdiction of a court to entertain a case, in any judicial proceedings is fundamental. A court that lacks the jurisdiction to try a case, no matter how well conducted the proceedings are, acts in futility. It therefore becomes imperative that parties or litigants in compensation claims arising from oil pollution should approach the proper court for redress. This is more so when the jurisdiction is initially conferred on one court, only to be later removed and vested on another court. This is the situation in oil pollution cases. Under the 1979 Constitution, a High court of a State had the power or jurisdiction to try cases involving oil pollution. This jurisdiction was taken away in 1993 by virtue of Decree 107 of that year, and vested on the Federal High Court. This position was retained in the 1999 Constitution, as now amended. Therefore it is the Federal High court which exercises jurisdiction over oil mining matters, including oil pollution, to the exclusion of other courts. Our discussion on this concluding unit in Module 1 of this course shall focus on this issue. In the course of our discussions, we shall encounter the following legislations: (1) Constitution of the federal Republic of Nigeria, 1999 as amended. (2) Federal High Court (Amendment) Act. 68 2. COURSE OBJECTIVES At the end of this study unit, the student should be able: - To identify the relevant provisions both in the Constitution and the Federal High Court Act, as amended, on jurisdiction over oil pollution claims. - To understand and appreciate the provisions on jurisdiction over oil pollution cases. - To understand and appreciate the interpretation of these provisions through case law. 69 3.0 MAIN CONTENT 3.1 Introduction 3.2 Jurisdiction of the Court on pollution matters 3.3 Case Law in support 3.0 COURTS’ JURISDICTION ON OIL POLLUTION MATTERS IN NIGERIA 3.1 INTRODUCTION In every judicial system, there is a division of duties or functions amongst courts. It is usual to expect certain courts to be vested with powers and jurisdiction to hear and determine specific matters. In Nigerian jurisprudence, the supreme law, the Constitution, has set out in various provisions the functions of our courts. In this chapter of the constitution, it will be seen that while some courts are Federal, others are State. 4.2 Jurisdiction of the court on pollution matters Today in our law, any cause of action pertaining to oil spillage or pollution or effects of gas flaring can only be instituted at the Federal High Court. Section 251 (1) n of the 1999 Constitution provides: “………………………. the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters – (n) mines and minerals, (including oil fields, oil mining, 70 geological surveys and natural gas)” In addition to the above provision, Section 2 of the Federal High Court (

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