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HomeDiaspora LawyersThe Social Development Pillar, Human Rights and Oil & Gas Synchronization under the...

The Social Development Pillar, Human Rights and Oil & Gas Synchronization under the Nascent Petroleum Industry Act (PIA) 2021 

The pertinent issues regarding implementation of the social development pillar in the  Nigerian petroleum industry considers the extent to which participation has fostered:  Openness, inclusive societies, justice and a partnership with the public to develop and  manage the vast wealth of petroleum resources.

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The essence of sustainable development as subsumed in the sustainable development  goals (SDGs) is to enhance synchronisation between development goals and environmental protection. In the petroleum industry context, it is further stressed that the integration of the 17 goals articulated in the 2030 Agenda for Sustainable development remains integral for achieving social development and green petroleum industry. One however acknowledges that synergies across all 17 goals though ideal, may not always be feasible and the likelihood of trade-offs remain realistic considerations in the administration of an industry as global, complex and dynamic as the petroleum industry. Notwithstanding this limitation, global and  planetary sustainability is dependent on goals harmonization across SDGs especially as it affects the oil industry and its ability to impair the environment and social development via unsustainable exploitation processes. This article thus undertakes an assessment of the Nigerian petroleum regulations to ascertain their feasibility for  achieving social development in the Niger-Delta, which remains the epicentre of oil  exploitation in Nigeria. 

Social Development in Nigerian Oil and Gas laws: Pre-Petroleum Industry Act (PIA)  2021 

The social development pillar of the sustainable development paradigm remains an integral aspect of sustainable development. This of course imposes an incumbent duty on oil producing states to ensure relevant tools and mechanisms for optimizing social development during hydrocarbons exploitation. In essence, oil-producing regulations and guidelines should therefore be promoters or inducers of social sustainability and  development in oil producing regions whilst operating as agents of operationalizing  sustainable development in the context of petroleum exploitation. Implementing the  social development pillar during oil exploitation, therefore, envisages a recognition of the interlinkages between participatory rights and human rights articulated across much of the sustainable development goals (SDGs).1 Consequently, we appraise core social development tools identified as participatory rights embedded in public participation, access to information and access to justice. This is articulated in  Principle 10 of the Rio Declaration and reinforced by human rights impacts assessments. The above are clarified in this article as social development tools, which are considered in the Nigerian oil industry context to determine their efficacy for  achieving the sustainable development goals.  

Public Participation in the Nigerian Oil Industry: Pre-PIA (2021) The pertinent issues regarding implementation of the social development pillar in the  Nigerian petroleum industry considers the extent to which participation has fostered:  Openness, inclusive societies, justice and a partnership with the public to develop and  manage the vast wealth of petroleum resources. A closer observation of Nigerian  petroleum regulations has not shown very positive results in this area. Apart from the  EIA Act which provides for the report of an EIA to be published, other regulations are  silent on participation.2 

Furthermore, the issue of the Nigerian government’s ownership rights over subsurface  minerals as provided by Part 1, S.39 the Nigerian Constitution,3 the Land Use Act and  the now obsolete Petroleum Act (PA) seem to obviate the need for consultations with the  public on matters affecting those natural resources which are directly under state  patrimony. Apparently, this seems to be a pattern with some oil producing states like  Ecuador which prompted the observation of the ILO Committee in the Confederación  Ecuadoriana Case.4 Ecuador in its report had argued that it did not consider it  appropriate to enter consultations with oil producing communities because oil was  under state ownership and the right to subsurface products (unlike surface products)  was part of state patrimony. Although the ILO Convention does not specifically apply  to Nigeria, the observation of Clavero regarding the relationship between states, their  citizens and the natural resources within their jurisdictions is quite instructive and  proves beneficial for oil producing states and affected communities.5 

Notwithstanding that the people of the Niger-delta do not directly come within the  classification of “indigenous peoples6” they however constitute the local communities  and populations whose very lives and well-being depend on the environmental  decisions concluded on the region. Despite the classification as minority groups or  populations in the Nigerian context,the region however accounts for an estimated 25%  of the Nigerian population accruing to an approximated 50 million people as at 2020.7 The Niger-delta environment realistically constitutes their ancestral homelands,  hence requiring statutory protection, not just for themselves but for their environment  and future generations.8 Due to the position articulated by Article 15 (1) of the ILO  Convention 169, which requires states to safeguard indigenous peoples’ rights to the  natural resources on their lands, including their right to participate in the use,  management and conservation of those resources andstressed in the Ecuador Report,9 it is quite instructive for Nigeria as an oil producing state, to make necessary  adjustments in its petroleum regulations especially as regarding consultations with  local communities. This serves to engender sustainable development and prevent  tragedies as deducible from the Ogoni-land Case10 where the Nigerian authorities were  adjudged to have performed poorly in providing environmental information during  and after emergencies and also failed to prevent oil spills of disaster proportions,  equally failing to inform on the impact of those spills including the toxicity generated  by the spills on freshwater sources as well as on food crops and other vegetation.  

The Nigerian oil industry regulations which were sixteen (16) prior to the enactment of  the PIA, gave paid minimal attention to core issues relating to access rights of the oil  producing communities. Some of the legislations in the petroleum industry specifically  exclude the public on access to relevant environmental information. A typical example  of a petroleum regulation that effectively serves to withhold information and public  participation during and after spills occurrence, including its clean-up implications is  evident in the National Oil Spills Detection and Response Agency Act (NOSDRA Act).11 The primary objective of the Act is the responsibility for preparedness, detection and  response to all oil spills in Nigeria. By virtue of section 5 of the Act, the Agency is  mandated among other things to ensure a safe, timely, effective and appropriate  response to oil pollution and to identify high risk and priority areas for clean-up.  

However, the provisions of section 24 of the Act, entail that oil spills information are to  be treated as strictly confidential matters by the agency or board officials, and could  only be divulged by a court order.12 This requirement for a court order before  information can be disclosed on critical issues like oil spills in the Nigerian petroleum  regulations and justice system undermines transparency or accountability for such  spills, and is inimical to the interests of sustainable development. More so, it frustrates  credible efforts of informants regarding spills information and data collection that is  crucial for a more preventative approach against environmental damage by oil spills.  This provision thus serves as a major hurdle against the equitable norms of good faith  by barring access to vital environmental information whilst incumbering  participatory and access rights of the public. Consequently, the right to demand  immediate response and remediation of oil spills impacted areas and hold polluters  accountable for oil pollution are grossly eroded. 

The Nigerian petroleum policies also fail to identify the relevant stakeholders for a  quality representation within the oil-producing communities and this becomes  detrimental to the enforcement of access rights and participation. It is clarified that the  provisions of international legal instruments like the Rio declaration and Art. 6 of the  Aarhus Convention purports that, the duty to consult the public entails the duty to  inform them about the proposed activity and the application on which a decision will  be taken. This ensures that the public make adequate preparations for effective  participation during the decision-making process. The Nigerian petroleum laws even  as provided by the EIA Act does not stress this requirement for enhanced or informed  public contribution on relevant environmental issues accruing from oil exploitation.  In other words, the public is not involved on matters relating to petroleum site description, lack information about the physical or technical characteristics of oil  exploitation and the immediate or protracted impacts, nor are they made aware of any estimates relating to the expected emissions or residues, the local communities are not informed about any mitigatory measures, and worst of all they are totally ignorant of any alternatives.  

Regrettably, the largely illiterate and uninformed local communities are often taken advantage off due to the absence of non-technical summaries published in relation to  EIAs performed in the industry, as the petroleum laws offer them minimal protection.  More often, publicity for EIAs is minimal to avoid controversy and save costs.13 The  consequences of these gaps in the petroleum laws have thus resulted in extreme  distrust and animosity between oil industry operators, the government and oil  producing communities. This has led to incessant protests, militancy and pipeline vandalism, all of which have negatively impacted on the environment, economy and socio-cultural life of the people.14 These factors constitute drawbacks against sustainable development and a green petroleum industry in Nigeria. 

Human Rights Impact Assessment for Social Development in Nigerian Petroleum  laws: Pre-PIA (2021) 

Human rights impact assessments (HRIAs) are essential tools that optimize the social development pillar whilst shielding against human rights violations accruing from a state-authorized activity such as oil exploitation. HRIAs thus optimize the aims of the  SDGs, especially forming a viable means of engendering SDGs 1-6 to prevent a  degraded environment and associated food crises or severe health consequences for people in oil-producing regions. Moreover, Nigeria is a signatory to both the  International Covenant on Civil and Political Rights (ICCPR) the International  Covenant on Economic, Social and Cultural Rights (ICESCR), as well as the regional  African Covenant for Human Rights.  

Nevertheless, the accompanying responsibility to protect the human right to a healthy environment, prevent human rights violations and degradation occurring from oil exploitation via a tool as remarkable as the HRIA is unfortunately absent in Nigerian  petroleum law and policy. Undoubtedly, such an inadequacy in the petroleum  regulations regarding HRIA performance at the earliest stages of exploration, affecting  screening, scoping and baseline submission stages can impair the aims of sustainable  development in the oil industry. 

Apparently, the absence of human rights provisions in the petroleum regulations has also resulted in the neglect of the health and well-being goals articulated in the SDGs  which are crucial for the sustainable development of oil-producing regions.15 In as much as a plethora of factors, ranging from corruption, to weak governance structures or even paucity of regulations and a lack of capacity development may be blamed for  the unprecedented level of human rights abuses recorded in the Nigerian petroleum industry, the fact remains that, enhanced impacts assessments and implementation of  HRIAs will undoubtedly improve the status quo. Ultimately, the situation in the Niger delta can drastically improve if HRIAs which are crucial tools to optimize local participation, foster health and well-being goals whilst eliminating human rights  abuses are included in Nigerian petroleum regulations to achieve the SDGs. 

Access to Justice and Judicial Review in Nigerian Petroleum Regulations: Pre-PIA (2021) 

The issue of access to environmental justice is relevant on two fundamental levels.  These include; access to justice to challenge regulators in respect of projects,  (especially for non-compliance with regulations) and to seek redress including,  holding polluters accountable for a polluting activity or environmentally harmful occurrence during oil exploitation.16 Despite the level of environmental and economic collapse in the Niger-delta due to petroleum production activities, the indigenes often find it an uphill task in securing justice or access to courts and judicial proceedings.  Several statutory limitations like, statutory time-lapse or statutory bars, “locus standi  rules”, abound in Nigerian regulations in relation to negligence or environmental  damage claims against national or multinational oil companies.17 

Oftentimes procedural hurdles relating to standing or “locus standi” and the right to  enforce environmental actions on a personal or representative capacity deter  legitimately affected persons from pursuing such actions.18 All too often, the rather  strict and narrow judicial construction of standing or “locus standi” for petroleum  induced environmental pollution, constitutes a challenge faced by litigants in pursuing  judicial review for environmentally harmful activity. The situation is further  compounded by the substantial costs of litigation, including, the low guarantees of  success in view of the powerful or influential government or IOC defendants. Thus, the  courts which ought to be channels to preserve the rights of the poor to secure justice in  the face of environmental degradation and the consequential negative impacts on the  incomes, social systems, or livelihoods of oil producing communities, become  inaccessible. This further entrenches poverty and frustrates the efforts of these  communities to lift themselves and their families out of poverty. Indeed, regarding  standing, it has been opined that; 

“…the Nigerian standing rule has a very narrow concept of personal standing  (one that focuses on private legal rights) and no concept of representative  standing. Hence, persons with a real interest in an issue of local or national  importance invariably will be denied standing; even if what is assailed involves  obvious illegality”.19 

Furthermore, in instituting claims concerning compensation for environmental  pollution or damage caused by oil and gas activities, the vagueness of corresponding  statutory provisions renders the process futile. Reason being that the prevalent  petroleum regulations fail to clarify, modalities for compensation and how to ensure a  “just and adequate compensation20” by specific mathematical standards or scientific  calculations.21 Likewise, other justice challenges include the problematic situation of  conferring exclusive jurisdiction on specific courts. Indeed, S. 251 (1) of the Nigerian  Constitution confers exclusive jurisdiction on the Federal High Courts in respect of oil  and gas matters.22 Consequently, actions can only be instituted at the Federal High  Courts instead of the States’ High Courts which are within reasonable proximity to the  Niger-delta environment where the alleged acts of pollution and damage occurred. In  many instances, the indigent victims lack the funds, knowledge, finesse, or expertise to  pursue such technical, financial or time-consuming claims to achieve environmental  and economic relief. Thus, the plight of the indigenes is exacerbated by these judicial  setbacks as they unduly suffer loss of their income and damage to their environment  and in most cases denied compensation23.  

Another aspect of this problematic issue is that, due to the state’s ownership and  control over mineral rights in Nigeria, compensation cannot be claimed on mineral  and oil resources as it comes within the purview of state patrimony.24 However,  landowners are entitled to make claims on surface rights, which affect their title and  land occupancy. As a result, the Land Use Act provides the parameters for  compensation where land is compulsorily acquired for oil mining purposes and for  purposes connected thereunder.25 Section 29 (2) (b) provides that “the occupier of land  acquired for mining purposes is entitled to compensation as provided under the  Minerals Act or the Mineral Oils Act or the Petroleum Act or any legislation replacing  the same”. However, the terms, scope or adequacy of compensation is not subject to  participatory decision making. Neither is it justiciable in any Nigerian court. Section  47(2) of the Land Use Act provides, “No court shall have jurisdiction to inquire into any  question concerning or pertaining to the amount or adequacy of any compensation  paid or to be paid under this Act.”26 As a result, compensation rates are decided without  the input of local communities, pre-determined rates categorised under “government  approved rates” and “industry rates”27 influence the modalities for compensation of  victims of oil exploitation, notwithstanding the extent of loss or damage suffered on a  realistic or pecuniary scale.  

Moreover, these compensation rates, be they government or industry rates often fail to  consider adjustments regarding inflation and even future crop yields in situations of  compulsory acquisitions of plantations, agricultural or farmlands which are crucial  for a fair assessment of damages. Thus exacerbating poverty in such regions. Despite  some improvements in the industry rates which are better than the government  approved rates, challenges remain evident as they are also concluded by the  Multinational companies without consultation or participation of local communities.  More so, the IOCs compensations likewise disregard prevalent market rates and  inflation. Ultimately and quite ironically these local communities inadvertently end  up getting exploited along with the petroleum resources derivable from their ancestral  

22See S. 154 (1) (n) which provides “Notwithstanding anything to the contained in this Constitution and in addition to  such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall  have and exercise jurisdiction to the exclusion of any other court in civil causes and matters relating to:-mines and  minerals (including oil fields, oil mining, geological surveys and natural gas)” 

 

lands. Arguably, the sustainable development tool of access to justice and judicial  proceedings for social development was considered virtually non-existent in the pre PIA Nigerian oil and gas laws. This lacuna begged the calls for reformsand underscored a need for Nigerian petroleum policy and regulatory adjustments to accommodate this  social empowerment tool which presaged the advent of the PIA (2021).  

The Petroleum Industry Act PIA (2021) and the Social Development Pillar The Petroleum Industry Act (PIA) 2021 is discussed in this article not just because it is a  statute in the corpus of Nigerian laws, but because it has for 2 decades, been a strongly contested, topical issue in contemporary Nigerian oil industry discourse. With the  PIA’s recent scaling of a new legislative milestone as of 1st July 2021, after the harmonization by both legislative houses and a presidential assent on 16th August 2021,  it becomes expedient to accord this statute some attention as it could hopefully become a game-changer in the quest for social development and oil industry sustainability in  Nigeria. This article, therefore, assesses the sustainability quotient of this recently passed legislation to determine its capacity to deliver on the goals and target indicators of the SDGs. It considers the extent to which this PIA compares to international standards and SDGs inclination towards a greener petroleum industry and social development. This chapter clarifies the degree to which this new framework can  improve on the extant petroleum regulations for a possible rescue of the Nigerian  petroleum industry and the Niger-Delta from further collapse, to provoke a  rejuvenation in line with the aims and norms of sustainable development.  

The Petroleum Industry Act (PIA) 2021: Advent, Evolution and Trajectory The PIA journey commenced at the 6th National Assembly in April of 2000 when the  President Olusegun Obasanjo administration authorised and established the Oil and  Gas Committee (OGIC) to conduct and undertake oil industry reforms. The outcome of  that endeavour was a National Oil and Gas Policy Report which was submitted in 2004.  The Report was subsequently approved by the President Musa Y’ardua administration  in 2007, presented to the Senate in 2008 but not much was achieved. The 7th National  Assembly thereafter proceeded to tackle the nagging issue of oil industry reforms but  also prevaricated and stalled until the last minute, unfortunately the laudable mission  of oil industry reforms remained unaccomplished. The 8th National Assembly did not  fare much better as controversies over varied or multiple versions of the bill including  fierce politicking marred and truncated the process.  

The 9th National Assembly submitted the PIB to the President Buhari administration in  July 2018 and after an interval it was re-modelled and reappeared as an executive bill  which was harmonized and passed by the Senate in July 2021. The PIA journey  eventually culminated in the presidential signing of the regulation into an extant Act of  the Federal Republic of Nigeria (Petroleum Industry Act) on the 16th of August 2021. 

Ultimately, the PIA from varied observations and struggles over the years appears to  have consistently failed to surmount challenges bordering on vacuous or vague  ownership status, perceived lack of consensus between the legislative and executive  arms, considered uncompetitive by investor stakeholders, contentions between the  IOCs and government over fiscal terms, frontier exploration, host communities’  settlements, minister’s powers and a perceived whittling down of presidential powers. 

9.3. Overview of the Petroleum Industry Act 2021 

The Petroleum Industry Act (PIA) is an omnibus regulation expected to optimize oil and  gas exploration and production via a framework that tackles all relevant aspects of oil and gas production in accordance with the sustainable development paradigm. It is  thus expected to repeal extant oil and gas legislation such as the Associated Gas  Reinjection Act, 2004, Hydrocarbon Oil Refineries Act, etc.28 

The bill purports to establish efficient and effective governing institutions, with  clear and separate roles for the petroleum industry; create a framework for a  commercially oriented and profit-driven national petroleum company which can  promote transparency, good governance and accountability in the administration of  the petroleum resources of Nigeria; and to foster a business environment conducive for  petroleum operations. A cursory glance at the bill as indicative from the long title,  reveals some hope and optimism regarding the mention and allusion to the social  development pillar of the sustainable development paradigm. This inclusion of  “development of host communities” forms the crux of issues on contemporary discourse relating to the Niger-Delta in a petroleum industry context on most national spheres or platforms. The long title of the Bill reads.  

“A BILL FOR AN ACT TO PROVIDE LEGAL, GOVERNANCE, REGULATORY AND  FISCAL FRAMEWORK FOR THE NIGERIAN PETROLEUM INDUSTRY, THE  DEVELOPMENT OF HOST COMMUNITIES AND FOR RELATED MATTERS ENACTED  BY THE National Assembly of the Federal Republic of Nigeria as follows”- 

Notably, the PIA is divided into 5 chapters, 310 sections and 8 schedules. The Act essentially redefines ministerial powers, appoints two corporate regulators, namely,  “the Commission”29 and “the Authority”30 including creation of NNPC Limited to take  over the assets and liabilities of the NNPC.31 The Bill also proposes voluntary migration  to IJV’s,32 acreage management, competitive bid prices, decommissioning and  environmental remediation funds. It further redefines government participation, 3rd  party access to facilities and pipelines, frontier exploration incentives, significant gas  discoveries, abolition of gas flaring,33 conduction of a needs assessment and  community development plans,34 petroleum host communities fund (with the  expansion of host community to include areas traversed by pipelines),35 regulators are  also appointed for upstream, midstream and downstream oil sectors amongst others. 

The PIA also authorizes a wide variety of petroleum contracts arrangements including  Concession Agreements, Production Sharing Contracts (PSC),36 Profit Sharing  Contract, Risk Service Contract or any accepted International Petroleum  Arrangement to be signed directly with the Commission. The NNPC will no longer play  the role of concessionaire under the PSC scheme. Fiscal regimes are also modified and  are replaced by a Dual Tax Structure – National Hydrocarbon Tax (NHT)37 and  Companies Income Tax (CIT), there is also Dual Royalty, with the aim of reduced fiscal  burden on Frontier and Inland Basins, marginal and small fields. 

Furthermore, the PIA in S. 1. Part 1 of cap 1 vests ownership of petroleum within Nigeria  and its territorial waters, continental shelf and Exclusive Economic Zone in the federal  government of Nigeria. This is likewise a retention of the provisions of the Petroleum  Act.38 S.2 provides for the objectives of the act to: (a) create efficient and effective  governing institutions, with clear and separate roles for the petroleum industry; (b)  establish a framework for the creation of a commercially oriented and profit-driven  national petroleum company; (c) promote transparency, good governance and  accountability in the administration of the petroleum resources of Nigeria; and (d)  foster a business environment conducive for petroleum operations. The PIA in S. 3.  provides an outline of the powers of the petroleum minister, to 1(a) formulate, monitor  and administer government policy in the petroleum industry; 1(b) exercise general  supervision over the affairs and operations of the petroleum industry in accordance  with the provisions of this Act; (c) report developments in the petroleum industry to the  government; (d) represent Nigeria at international organisations on petroleum  matters; (e) promote an enabling environment for investment in the Nigerian  petroleum industry; (f) negotiate treaties or other international agreements on matters  pertaining to petroleum on behalf of the Government; including to grant and award  petroleum licences on recommendations of the commission. The PIA thus retains the  expansive powers of the petroleum minister as deducible in comparison with  redundant petroleum regulations. However, it is reiterated that the core problems of  unrestrained executive fiat and abuse of powers, which institutionalize corruption  and underdevelopment in the petroleum industry can in the long run, only be  forestalled by efficient oversight and vigilant monitoring by other arms of government  as well as a citizenry that holds their government accountable.  

The PIA and the Social Development Pillar 

This section considers the PIA and its capacity to optimize the social development  pillar of the sustainable development paradigm. The PIA in Chapter 3 provides for Host  Communities Development. S.234 clarifies the Objectives, S.235 incorporates the Host  Communities Development Trust. Ss. 239-244 indicates the objectives of the fund, the  sources of funding, the Fund’s allocation, while S.251 which appears to be a crucial  social development strategy, simulating the essence of a human or social impact  assessment, by mandating a Host Communities Needs Assessment. In the same vein,  S.252, stipulates a Host Communities Development Plan to be provided by petroleum  industry operators before commencement of petroleum activities. 

Thus, oil companies granted oil leases or Joint venture (JV) operators are required to  contribute 3% to 5% for (upstream Companies) and 2% (other relevant companies) of  their operating expenditure to the Host Communities Development Trust Fund. This is  in addition to the existing contribution of 3% to the NDDC. The Fund is tax exempt, and  any contributions payable is tax deductible. The designated funds are earmarked as  75% for capital projects, 20% as reserve and 5% for administrative expenses. However,  a community stands to forfeit the cost of repairs in the event of vandalism, sabotage and  other civil unrest with resultant damage to petroleum facilities or disruption of  production activities.  

The above provisions are apparently more progressive than previous oil and gas  regulations, in terms of social development and inclusion for oil producing host  communities. Although earlier issues relating to provisions that undermine access to  justice, as raised in previous sections still persist. For instance, S101(3) retains the  vacuous provision of the highly subjective “fair and adequate” compensation clause.  Even though it is hoped that the slim possibility of independent assessors for claims  assessment may ameliorate the problem, the fact that the Commission reserves the  right to determine the amount of compensation payable, already raises doubts.  Moreover, S.101(2) again vests jurisdiction for environmental damage and ensuing  social disruption from petroleum exploitation activities on the Federal High Court.  Having also earlier clarified the grave challenges and dismal impact oil devastated  environments can cause to the poor and largely indigent folk who often suffer loss of  livelihoods and habitats as a result, the protracted nature of the Federal High Court  judicial processes would appear counter-productive to social development and  empowerment of the host communities. This is because the cost and time implications  of such judicial procedures prove exhausting. All too often, some of these claimants eventually do not outlive the judicial process for compensation and rehabilitation.  

Notwithstanding, the PIA does allow provisions for entry of 3rd. parties for facilities  inspections. Likewise, the establishment of the Host Communities Development Fund  remains a laudable provision. This is because it deliberately acknowledges the need  for contributions to the sources of petro-wealth for necessary restoration and  reintegration. It is however clarified that, instituting safeguards to secure community  interests, proper management and dispensing of the Fund for community development  efforts, is ultimately what can translate into viable launchpads for sustainable  development of the petroleum industry and indeed the Niger-Delta, which is at the core  of the Nigerian oil industry discourse. 

Conclusion 

In conjunction with earlier observations, the article reiterates the fact that, vague,  vacuous, poorly worded regulations, including weak or absent compliance  mechanisms attenuate social goals in oil industry regulations, whilst poor monitoring  procedures, inadequate sanctions, failure of enforcement provisions, inadequacy of  appeal procedures and a virtual lack of political will to promote, enact, modify and  enforce environmentally protective and socially beneficial regulations trigger human  rights violations, exacerbate inequities and poverty. Altogether, these factors have  resulted in the pathetic state of the Niger-delta region and the under performance of  the Nigerian petroleum industry. Hopefully the new PIA which appears to have  improved in a social development context in comparison to previous oil regulations  can provoke meaningful changes to trigger social development in the Niger-delta. 

Dr Ejenavi is a legal practitioner, law lecturer,  author and researcher. She has research interests in international law, international environmental law, energy  law, oil & gas law, sustainable development, and public international law. 
  1. See, Sustainable Development Goals and “Transforming Our World: Agenda 2030 for Sustainable Development”  Available at: https://sustainabledevelopment.un.org/post2015/transformingourworld Accessed 26 April 2018
2.See, especially S.22 (1) (b), also S.26 of the EIA Act 

3 S.39, Part 1. Includes, Mines and minerals, including oil fields, oil mining, geological surveys and natural gas, as  coming within the Exclusive legislative list of the Federal government. 

4. In the Report of the committee set up to examine the representation by the Confederación Ecuadoriana de  Organizaciones Sindicales Libres alleging non-observance by Ecuador of the Indigenous and Tribal Peoples  Convention 1989 (no 169), made under art 24 of the ILO Constitution, particularly para 38: ILO doc GB/282/14/2 (14  November 2001).  

5 See, B Clavero “The indigenous rights of participation and international development agencies” (2005) 22/1 Arizona  Journal of International and Comparative Law 41 at 46” 

6 See, International Labour Organization Convention 169 Concerning Indigenous and Tribal Peoples in Independent  Countries (ILO Convention 169). 

7 See, The Niger-Delta Region (NDR) Survey culled from the Nigerian Population Commission Report. Available at:  https://www.nigerdeltabudget.org/the-niger-delta/ 

8 See, M.R. Anderson, Human rights approaches to environmental protection: An overview” in AE Boyle and MR Anderson  (eds) Human Rights Approaches to Environmental Protection (1996, Clarendon Press) 1 at 9. 

9 Confederación Ecuadoriana de Organizaciones Sindicales Libres alleging non-observance by Ecuador of the Indigenous  and Tribal Peoples Convention 1989 (no 169), made under art 24 of the ILO Constitution, particularly para 38: ILO doc  GB/282/14/2 (14 November 2001) (Ecuador Report).

10African Commission on Human and Peoples' Rights, The Social and Economic Rights Action Center and the Center for  Economic and Social Rights v. Nigeria, A, Comm. No. 155/96, 2001 

11National Oil Spills Detection and Response Agency (NOSDRA) Act 2006.  

12Section 24 provides that a member of the Board, an employee or officer of the Agency shall treat as confidential any information which has come to his/her knowledge, and not disclose any information except where required by a court  of law.

13 See, Chilenye Nwapi “A Legislative Proposal for Public Participation in Oil and Gas Decision-Making in Nigeria”  Journal of African Law, 54, 2 (2010), 184–211 © School of Oriental and African Studies,  

2010.doi:10.1017/S0021855310000045 

14 Boele, Richard, Heike Fabig, and David Wheeler. "Shell, Nigeria and the Ogoni. A study in unsustainable  development: I. The story of Shell, Nigeria and the Ogoni people–environment, economy, relationships: conflict and  prospects for resolution." Sustainable development 9, no. 2 (2001): 74-86. 

15 In the Ogoni-land Case, the African Commission was also of the view that the Nigerian government’s disregard of  human rights including a manifest breach of Art.24 was a violation of the right to a healthy environment. 

16 See, Oronto Douglas v. Shell & Ors. (Unreported) Suit No FHC/2CS/573.  

17Section 12 of the NNPC Act provides that “no suit against a member of the board or an employee of the Corporation  for an Act done or in respect of an alleged neglect or harm shall be instituted in any court unless it is commenced  within 12 months after the act or the neglect complained of thereby imposing a strict statutory limitation of action and unduly insulating the board or an employee from legal action that may be brought against them. 

18 See, Oronto Douglas v. SPDC, (Unreported) Suit No FHC/2CS/573. The Federal High Court struck out the suit on the ground inter alia that the suit was baseless, and that the Plaintiff had no standing to institute the suit. 

19 See, TI Ogowewo 'Wrecking the law: How article III of the Constitution of the United States led to the discovery of the  standing to sue in Nigeria' (2000) 26 Brooklyn journal of International Law 529. See also, Obiora Chinedu OkaforI, Basil  UgochukwuII “Raising legal giants: The agency of the poor in the human rights jurisprudence of the Nigerian Appellate  Courts, 1990-2011” (2015) African Human Rights Law Journal

20 See, Petroleum (Drilling and Production) Regulation 1969 with amendments in 1995 and 1996, S.23. Fishing rights; 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. This was an issue in the case of R. Mon & Anor. V. Shell BP (1970-72)  RSLR 71 

21 See also Jonah Gbemre and Ors. V. SPDC and Ors. supra

23 See African Commission on Human and Peoples' Rights, The Social and Economic Rights Action Center and the Center for  Economic and Social Rights v. Nigeria, A, Comm. No. 155/96, 2001. (Ogoniland Case) 

24 See Section 44 of Federal Republican Constitution 1999 

25 Section 28 (3) (b) Land Use Act 1979. 

26 S. 47 Land Use Act. 

27 The “industry rates” are set by the Oil Producers Trade Section (OPTS) of the Lagos Chamber of Commerce (an  association of oil-producing companies). These rates though inadequate are substantially higher than the government  approved rates which are old and have not been reviewed for decades, they are unrealistic and currently amounts to  very little, even in Nigeria. For instance, in 1997 the OPTS rates for rice was =N=15,860 (£53) per hectare while the 1995  government rate was =N=1,924 (£7) and according to the World Bank, based on an annual rent of =N=5,000, (£16) the  amount of compensation should not be less than =N= 50,000 (£160) per hectare yet, companies operating in the Niger Delta states paid only =N= 1,000 (£3) per hectare a sum that cannot be regarded as fair and adequate under  international standards.

28 No. 17 of 1965, Nigerian National Petroleum Corporation (Projects) Act No. 94 of 1993, Nigerian National Petroleum  Corporation Act (NNPC) 1977 No, 33 CAP N123 Laws of the Federation of Nigeria as amended, Petroleum Products  Pricing Regulatory Agency (Establishment) Act 2003; Petroleum Profit Tax Act Cap P13 LFN 2004, and Deep Offshore  and Inland Basin Production Sharing Contract Act 2019, as amended. 

29 See Chapter 1, Part III, Petroleum Industry Act. Designates the Commission as a Corporate body and Regulator of  Upstream Oil and Gas operations. 

30 See Chapter 1, Part IV of the Petroleum Industry Act which designates the “Authority” as a corporate body and  Regulator of midstream and downstream oil and gas activities. 

31 See, Chapter 1, Part V of the PIA which defines the roles and functions of NNPC Ltd. 

32 See Chapter 2, Part II, of the Petroleum Industry Act, SS 68,69 on Acreages and Grid System. 33 See, Chapter II, Part II, Ss. 104-107, Petroleum Industry Act (PIA). 

34 See Chapter 3, ss. 234-257, providing for Host Communities Development. 

35 Ibid. 

36 See Chapter 4, Part II, Ss. 260-266 of the Petroleum Industry Act. Addressing the Petroleum Industry Fiscal  Framework. 

37 Ibid





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