NIGERIAN ENVIRONMENTAL MANAGEMENT ACT (DRAFT) 2000
The draft Nigerian Management Act (NEQMACT) is prepared by the FMEV, as a framework environmental legislation was meant to repeal the FEPA Act. Of particular interest, is the innovation brought in by the draft Act on gas flaring phase-out policy of the government. It introduced criminal liability for gas flaring against both the responsible oil company as a legal entity, and its management staff individually. Section 20 of the draft Act empowers the ministry to issue a notice in an official gazette, banning gas flaring, but may in circumstances grant special permit to flare for a limited period of time. Sub-section (4) then provides thus:
Any person who violate the provisions of Sub-Section (2) or (3) of this section commits an offence and shall on conviction pay a fine not exceeding N500,000,000.00 (Five Hundred Million Naira).
In addition to the penalty prescribed under subsection (4), subsection (5) provides that ".the Chairman, Managing Director, and the Directors of the body corporate at the time the offence was committed shall be liable to imprisonment for a term not exceeding 10 years each.
This is the kind of law that is needed if anything serious is to be achieved in the fight against gas flaring and other environmental and social crimes being committed by both oil companies and the Federal government as joint venture partner in the Nigeria's petroleum resources development. This piece of environmental legislation is unprecedented in the Nigeria's legislative history for environmental protection and natural resources management. It was comprehensive in the issues covered, and much professional expertise, both local and foreign was well utilized in producing the document.
Indeed, even the World Bank was fascinated by the draft, review by the draft, reviewed and made more inputs in its. The WB then offered to finance three (3) national stakeholder workshops in different parts of Nigeria to sample more opinions observations and comments from wider populace, with a view to standardizing the draft. Curiously however, this piece of draft legislation ended up as a draft, and law is yet to see the light of the day.
But even with a law like the draft NEMACT, it is apparent that the solution to be problem of gas flaring in Nigeria would more than a mere piece of legislation. There will be need for more investment in the technology and facility for gas and utilization.
Even more directly needed, is order to address the problem, is more political will on the part of the government to enforce the law, and to require the MNOC's to live up to their corporate social and environmental responsibilities.
INSTITUTIONAL FRAMEWORK
Ministry Of Petroleum Resources (MRP)
The MPR, headed by a Minister, is charged with the responsibility of formulating policies relating to oil and gas industry. The MPR performs this onerous responsibility through the Department and Petroleum resources (DPR). The DPR has also issues regulations and standards of the conduct of E & P Operations.
Nigerian National Petroleum Corporation (NNPC)
The NNPC was established by the Nigerian National Petroleum corporation Decree No. 33 of 1973 to assume the responsibilities hitherto performed by the MPR. Broadly, the responsibilities of the NNPC are divided into two: Commercial and Inspectorate functions. It has 12 strategic business units, covering the entire spectrum of oil industry operations. One of these is the Nigerian Gas Company (NGC) by which NNPC handles gas development policies in the country. There is operational sector that handles Nigeria's participatory interest in the various agreements Nigeria signed with the MNOCs.
Federal Ministry of Environment (FMENV)
The FMENV was established in 1999 as the apex authority on the Environment. It assumed the responsibilities of the then FEPA as contained in the FEPA Decree. These instrument that set up the FMENV also specifically transferred to it, the Oil and Gas Pollution Control Unit of the DPR. The FMENV, in response to current demands of Nigeria's international obligations and in accordance with the Nigeria's NEP, drafted the National Environmental Management Act (NEMACT), which inter alia incorporated the current government policy on gas flaring elimination, and the utilization of Nigeria's gas resources.
The Niger Delta development Commission (NDDC)
The NDDC was established by the Niger-Delta Development Commission Act, 2000 as an offshoot of the Oil Mineral Producing Areas Development Commission (OMPADEC) established in 1988. It established pursuant to the government's sensitiveness to the plight of the Niger Delta Oil producing communities. It was established pursuant to the government's sensitiveness to the plight of the Niger Delta oil producing communities. It also addresses the environmental and ecological problems with the E&P activities. The Commission is composed of a Governing Board with members from each of the States constituting the Niger Delta.
NDDC, The Niger Delta Region and Gas Flaring
The relevance of the NDDC to gas flaring phase-out cannot be over-emphasized; all the Nigeria's gas resources are located within the Niger Delta region. Hence, Niger Delta is the Nigeria's environment and peoples most affected by the flaring. This tripartite relationship has been described by Diane Abbot in her article entitled "Think Jamaica is bad? Try Nigeria". Thus "Nigeria's greatest blessing has been oil; but it has also been it greatest curse. It is the sixth biggest oil producer in the world. Oil accounts for 95% of exports by value and 80% of government revenue amounting to billions and billions of pounds.
The discovery of oil has been an ecological disaster for the Niger Delta (one of the most populous parts of the country) where the oil extracted. Shell and other Western Oil Companies have, in collusion with successive military dictatorships, raped the region. Petrol contamination of the water table has made local water undrinkable. Farming and fishing grounds have been ruined and gas flaring in the Delta is cited as Africa's single biggest contribution to greenhouse gas emissions. It is symbolical of the brutally exploitative nature of the oil industry in Niger that the by-product (which other oil producers like Trinidad liquefies and market) is simply burnt in giant flares which causes incalculable environmental damage".
The Niger Delta is located in the Southern part of Nigeria, a geopolitical framework mainly populated by the Ijaw ethnic nationality. Spreading over a total landmass of about 70,00sqkm, the region is inhabited by an estimated population of 30milion Nigerians in 2000 communities as of 2005, accounting for more than 23% of Nigeria's total population. In its present composition, the Niger Delta covers the six states of the South-South, namely, Akwa-Ibom, Bayelsa, Cross River, Delta, Edo and Rivers. This is so even though the definition given the Niger Delta by the Sir Henry Willink commission report of 1957 is much narrower.
However, the legislation on the NDDC, in 2000 has further extended the frontiers of the Niger Delta to include Abia, Imo and Ondo States, thus making the political map of the Niger Delta to comprise nine states. The Niger Delta communities have settled in the area for several millennia, the oldest group having been in the areas for some 7, to 10 thousand years. The primary occupations of the people include fishing, farming, forest product gathering, craft etc usually at subsistence level. However, the region is endowed with enormous natural resources. It has the world's third largest mangrove forest with the most extensive freshwater swamp forest and tropical rainforest characterized by great biological diversity. Alongside the immense potential for agricultural revolution, the Niger Delta region also has vast reserves of non-renewable natural resources include clay pit for burnt brick making in the construction industry, and silica sand for the glass manufacturing industry which have however, remained largely untapped.
The idea of setting up a special government authority for the Niger Delta was first recommended by the Willink Commission Report of 1958. The said Commission observed inter alia that it is not easy for a government or legislature operating from inland to concern itself or even fully understand the problems of a territory where "communications are so difficult, building so expensive and education so scanty in a country which is unlikely ever to be developed. The Commission concluded:
We had no doubt that a feeling of neglect and a lack of understanding was widespread in both Religious (Western and Eastern Deltas). We consider that a case has been made out for special treatment of this area. This is a matter that requires special effort because it is poor, backward and neglected.
This was the prologue to the establishment of the Niger Delta Development Board (NDDB) in 1961: "to consider the problems of the area of the Niger Delta". The practice thereafter ensued by successive governments establishing and renaming similar agencies. These include the Niger Delta Basin Development Authority (NDBDA) in 1976; the OMPADEC in 1992 and the present NDCC in 2000.
Though it is beyond purview of this paper to investigate how these commissions (miss) carried their responsibilities, it is nonetheless rather intriguing and unfortunate to observe that the local population of the Niger Delta are, and have always, ironically, lived in the most despicable environmental and social conditions. This situation was caused or aggravated by the 45 years of exploration and production activities which have been going on without due regard and attention on the part of both the oil companies and the government. It ought be mention however that the Obasanjo administration however, has the credit of committing on the Niger Delta development, within "the past six years of its existence, (the sum of) 210 billion .an amount more than what was spent in the area from 1960 to 1999" 138 That was why people criticize the NDDC with some asking : "Six' years after the creation of the NDDC, there have been no practical steps to restore the destroyed means of livelihood of the people whose farmlands and fishing occupation have cease to be useful due to pollution. One may then be right to add that the sorry state of the Niger Delta environment and its peoples is partly result of corruption on the part of the institutions manned and administered by the Niger Delta indigenous elites whose responsibility it was to better off the life of the people in the area over the years.
REGULATIONS OF OTHER JURISDICTIONS
Under this head, focus will be on the approach to Gas Flaring in (Alberta, Canda) which has been recommended as a successful way of reducing Gas Flaring. Flaring rates and Gas utilization methods of other countries will also be mentioned, and the approach to Gas Flaring on a Global Level via the Global Gas Flaring Reduction Partnership will also be addressed.
In some counties of the world, Gas flaring has been reduced or almost totally extinguished due to the fact that these countries recognized much earlier, the value of Natural Gas and did indeed pay more than lip - service in ensuring that it was adequately conserved and utilized. This is in contradistinction to the Nigerian position, where Gas flaring was overlooked because the government and the oil companies were more interested in reaping short -term profits from oil production and sale, and were not too keen on expending money on costly Gas re-injection or utilization facilities. This attitude led Nigeria to become the country that ranks highest in Gas Flaring, worldwide and thus, to be more prone to the attendant negative effects it breeds.
However, Nigeria does not stand-along when it comes to flaring, as practically every country, that produces oil and Gas in the world, is guilty of their fair share of gas flaring, although most of them have taken the wiser option of conservation and utilization of Natural Gas. In Western Europe for example, about 99 percent of associated gas is used or re-injected into the ground. In Canada, 92 percent of the gas is conserved or used in some way, while only 8 percent is flared. Also both Canada and America are in the habit of collecting gas for use as fuel.
In Norway, the Norwegian Petroleum Directorate has stated that consumption of Natural Gas produced off-shore has increased in their country. Also, all natural gas burned offshore (consumption and flaring) is subject to a carbon dioxide tax of 0.72 NOK per standard cubic meter). Associated Gas produced in Norway is used in 3 ways, which are as follows:
1. For Power Generation to drive compressors, pumps and other equipment on an offshore production platform;
2. The gas is injected into the reservoir to maintain oil production by pressure support, and
3. The gas is cleaned, compressed and transported by pipeline to a receiving terminal (in Norway or Continental Europe).
Also, non-Associated Gas produced in Norway is put to two uses (Power Generation and pipeline transport).
In 1999, it was reported in the Guardian that Holland had a zero gas flaring profile and that the United States accounted for only 0.6 percent of the total amount of gas flared globally. In the same report, Nigeria's 76 percent flaring of Natural Gas was placed against Libya's 21.0 percent and Algeria 4.0 percent. In another Newspaper Report in 1998, World Bank Energy specialist Mr. Arinze Agbim, a former executive director with Mobil Producing Nigeria Plc, started that while the total production flared and vented in Nigeria has only reduced from 95 percent in the 1970's to about 75 percent in 1998, Malaysia had totally extinguished its flares from a 100 percent level over the same period, and in India, Flaring levels had been slashed in only four years from a 1994 peak of 23 percent, to less than nine percent in 1998.
In the United Kingdom, there is zero tolerance for gas flaring and this is evidence in the way the British successfully reduced flaring from 90 percent to around 2 percent. In the UK, gas flaring is currently being controlled by guidelines set up by the Department of Trade and Industry (DTI). Flares allowances are granted to oil and gas operators and under these guidelines, operators must demonstrate that they have not exceeded their flare allowance, and in order to achieve this, flow meters are used at production platforms and refineries to measure the amount of gas flared. However, because of space and operational constraints, these gas flow meters are sometimes installed in less than ideal configurations and this can lead to increase uncertainty in measurements.
Also under the Energy Act 1976, the Secretary of State for Trade and Industry, for natural gas to be disposed of 9whether at source or elsewhere) by flaring or by releasing it un-ignited into the atmosphere (venting). This applies to all onshore hydrocarbon fields. The main purpose of this requirement is to ensure that gas is conserved where possible by avoiding unnecessary wastage during the production of hydrocarbons. The Department requires that flaring should be kept to the minimum that is technically and economically justified. The over aim is therefore to reduce gas flaring on an annual and basis and the Department has proved successful in reducing flare emissions. Its approach is also reviewed on a regular basis, to ensure that it is integrated fully with Governments policy on green house gas reductions.
Back here in Africa, the Ghanaian Government is promoting the use of LPG (Liquefied Petroleum Gas), which is to be derived from the refinery gas that is often flared in Ghana. The Government recognized that using the gas in this way, would entail a reduction targets set under the Kyoto protocol of the United Nations framework Convention on Climate Change (UNFCC). Due to its high calorific value, LPG is particularly suitable for cooking, heating and lighting in the home. It is also, relatively easy to store and to transport to more remote areas. The people running the Tema Oil Refinery in Ghana took active steps to recover this refinery gas compress and bottle it for distribution as LPG, because they saw it was a way to prevent waste of energy and reduce pollution. The use of LPG was also advocated as an alternative to the use of fuel wood, and its associated problem. The Tema Refinery saw the LPG as ticket to open up a new market for themselves with the potential of increased profits and, they even gave away free stoves to encourage the use of LPG.
Unfortunately, however, these stoves where made in a European design and were unsuitable for use with the traditional rounded pots favoured by most Ghanaians so the market for LPG stalled.
In the United Arab Emirate (UAE), tow projects designed to reduce Gas flaring have been completed by the Abu Dhabi Oil Company (ADOC), and are at present, fully operational. The first is the Sour Gas Injection Project, which was given its final commission in October 2000. This project was created to inject sour gas that was previously flared, into existing oil reservoirs, because environmental pressures made such flaring no longer acceptable. A preliminary Engineering study into the proposed project was undertaken early in 1997, and consultations made with organizations operating sour gas injection facilities in Canada and equipment suppliers, and it was agreed that sour Gas injection was a tenable option to use.
The second project implemented by the ADOC, is the Zero Gas Flaring Project. The ADOC operates three offshore Oil fields namely Mubarraz, Umm Al-Anbar (referred to as AR) and Neewat Al - Ghalan (referred to as GA). This second project was completed in April 2001 and it recovers sour gas flared at Mubarraz offshore Mubarraz Island for injection into the Oil reservoirs of AR and GA fields via sour gas injection facilities
The National Petroleum Construction Company (NPCC) was the Main contractor for both projects and as a result of the combined efforts of both projects, almost all the sour gas produced from ADOC's Oil fields is now being recovered and injected into the oil reservoirs of AR and GA fields. Injection of sour gas in the above fields is also said to have significantly enhanced oil recovery from those fields. Also, Exxon Mobil has disclosed on their website that they have reduced flaring at their Baytown refinery in Texas (United States), by more than 70 percent since 2002.
At the Global level, the need to reduce Gas flaring via conservative and other methods has been recognized. This is because; Gas flaring is a problem that cuts across continents and countries. Consequently, some Oil and Gas producing countries of the world have joined forces in a Partnership, with a view to reducing Gas flaring. This is because; flaring or burning of gas has a global impact on climate change by adding to green house gas emissions. The Partnership, known as the Global Gas Flaring Reduction (GGFR) Partnership, was launched at the World Summit on Sustainable Development in August 2002, in Johannesburg. It first started as an initiative (The Global Initiative on Natural Gas Flaring Reduction) introduced by the government of Norway and the World Bank Group to investigate and find out the reason why huge volumes of Natural Gas were being flared and vented globally. The World Bank estimated this amount to be over 100 billion cubic meters per year comparable to the combined annual gas consumption of Germany and France - and that it has constantly been so, for the past 20 years (despite efforts made by governments and oil companies to curb it and despite the many successes in reducing Gas Flaring).
The World Bank also gives two reasons which have operated as barriers to the above efforts made and they are as follows:
1. The increase in Global Oil Production and Association gas production, and
2. Major constraints hindering the development of gas markets, gas infrastructure, and flaring reduction projects, which often require a collaborator and supportive actions.
As a result of its findings, the initiative was transformed into the GGFR partnership in 2002. This partnership brings around the table, representative of governments of oil producing countries, state-owned oil companies and Major - International Oil Companies so that they can together, overcome the barriers to reducing gas flaring by sharing global best practices and implementing country specific programs in gas flaring countries. This partnership is managed and facilitated by a small team at the World Bank and has numerable partners of which include the following: Algeria (Sonatrach), Angola, Cameroon, Canada (CIDA), Chad, Ecuador, Equatorial Guinea,
Indonesia, Kazakhstan, Khanty-Mansijsysk (Russia), Nigeria, Norway, U.K Foreign Commonwealth Office, United States; BP, Chevron, ENI, ExxonMobil, Marathon, NorskHydro, Shell, Statoil, Total; OPEC Secretariat and the World Bank, with other companies and countries expected to join in.
The aim of the partnership is to support national governments and the petroleum industry in their efforts to reduce flaring and venting of gas associated with oil production. In December 2002, the partnership held its first steering committee meeting and a three year work program was approved beginning in January 2003. In its first two years, the partnership plans to focus on Algeria, Angola, Cameroon, Chad, Ecuador, Nigeria and possibly Mexico.
In 2004, the Partnership unveiled the Global Gas Venting and Flaring Reduction Voluntary Standard, at the Second International Gas Flaring Reduction Conference in Algeria on May 10-11. This standard seeks to reduce venting and flaring significantly within 5 to 10 years in the GGFR partnership, which accounts for some 40 percent of Global flaring. It is the belief of the partnership that further reductions will be achieved if additional countries, companies and institutions endorse and implement the standard. The standard will encourage conservation of natural gas, spur the growth of domestic gas markets in less developed countries, reduce barriers to gas markets access elsewhere and reduce greenhouse gas emissions from flaring and venting. It will also encourage prioritization and allocation of resources to operations with the largest potential for venting and flaring reduction globally.
This standard takes a collaborative approach, which is essential to overcome constraints hindering viable flare reduction project. In applying the standard, oil and gas producers and governments will produce implementation plans that support gas utilization. Key stakeholders will be consulted, and these include gas producers, major consumers, and the government. The standard also makes provision for additional stakeholders such as owners of gas infrastructure, financial institutions and representative of Local Communities.
This inclusion of representatives of local communities in the standard is very commendable. This is something that is lacking under Nigerian Law and practice. The manager of GGFR, Bent Svesson, puts it rightly when he said that: "Reducing gas flaring requires a global and concerted effort by governments and Industry, as well as financial Institutions and representatives of Local communities".
The Global Gas Venting Reduction Voluntary Standard is a voluntary one and thus does not carry any formal penalties for non-compliance with its requirements. The standard encourages organizations to self regulate their flaring and venting activities, but it gives also, recommendations for the monitoring of Country's activities and requires transparency, so that feedback on their implementation and performance will be given to the broad range of stakeholders. The partnership recommends the practice in Ablerta Canada, which it lauds as an example of a successful, voluntary approach to reducing gas flaring, and to some extent, the standard took after the Alberta approach to Gas flaring. The practice in Canada will now be examined.
In Alberta Canada, gas flaring has dwindled significantly, and this achievement is attributable to their anti-flaring approach and the fact that there exist in the country, viable alternatives to Gas flaring, which they do indeed use. Flaring of associated gas in Alberta falls under the jurisdiction of the Energy and Utilities Board (EUB), whose goal is to eliminate the routine flaring of associated gas for the benefit of all Albertans. The EUB sets out regulatory requirements and acceptable levels of flaring in the province (Alberta). The Board uses a consensus based approach in determining the appropriate emissions levels, and makes consultations with two multi-stakeholder teams from the Clean Air Strategic Alliance (CASA). CASA in an independent, non-profit organization that brings together all sectors of the economy to discuss issues, and includes environmental, government, industry and health representatives from across Alberta. The above representative make up the (CASA) flaring and venting project team, whose purpose is to develop recommendations on acceptable emission levels and procedures for minimizing flaring CASA then submits these recommendations to the EUB, who will implement them.
This system has received international praise from the World Bank as a highly effective approach to minimizing flaring, so much so that the Global Gas Flaring Initiative had, requested the EUB to submit their approach to them, so that it may be used as a model.
In Alberta, if using a particular technology on a site can eliminate flaring, that technology will be implemented. Where total elimination is not however possible, reduction methods will be resorted and employed it at all possible.
In achieving the above, several factors are considered, and they are as follows:
Firstly, if there are residents nearby, firms that carry out continuous gas flares, will be required to consult with and/or notify such residents and provide them with information concerning the flaring. Notification given by such firms must necessarily include the company's plans for eliminating, reducing or improving the efficiency of the flare. Such residents must also be enlightened as to their right to object to the flare and the process for doing so. An objection should be by a written letter addressed to the EUB field centre, which will then reach a decision that the flaring be discontinued.
Secondly, it will also be considered whether there are economic alternatives to gas flaring. The EUB requires operators to evaluate the economic viability of eliminating flaring on an on-going basis. Flaring is thus to eliminated or reduced if it is deemed to be economic to do so. As at 2002, conservation of gas in Alberta was mandatory and thus deemed to be economic, when the incremental economic of gas conservation generates a net present value (NPV), before tax greater than zero. However, by virtue of the recommendations given by the Flaring and Venting Tema for 2006 the position above has been taken a step further. The position now is that conserving gas is mandatory even if the NPV of undertaking the necessary changes overall, costs the drilling company $50,000. This clearly evidence Alberta's strong commitment to reducing flaring.
Thirdly, the environmental impacts of reducing or eliminating flaring will be considered and whether it would be greater than the economic benefits. It will also be considered if the technologies to be employed in reducing flaring will create new sorts of environmental problems that would cause greater damage than the flaring. Thus, where it is better to flare, so as to avert some environmental dangers, flaring may continue. But where it is more environmentally beneficial to stop or reduce flaring, then it will be done.
Not all flaring in Alberta is however, outlawed, as there is a fixed maximum amount that may be flared annually. This is set at 670 million cubic meters, and this figure represents a 50% decline in Alberta's flaring levels from 1996. If flaring exceeds this amount the EUB will be entitled to impose restrictions on individual drilling sites until the total is below 670 million cubic meters.
Also all amounts of Gas Flared must be reported monthly to the Petroleum Registry of Alberta. The EUB must be provided with evidence that will support the calculations arrived at by individual firms, and is at liberty to request a re-evaluation if it feels these numbers were inappropriately determined.
If reduction of flaring still not possible after all these questions and economic outlooks have been considered, then the EUB will lay out performance requirements that must be adhered to by flaring companies. The requirements are contained in Guide 60: Upstream Petroleum Industry and Flaring, Incinerating and Venting, Section 7.
Some of these requirements stipulate that oil companies are to:
(a) Design flare so that emission do not exceed the Alberta Ambient Air quality Guidelines.
(b) Utilize best engineering practices on the design and operation of flare systems.
(c) Design ways to reduce odor and visible smoke emissions, amongst others.
Flaring in Alberta has declined greatly, owing to the commitment shown by all concerned, towards ensuring its reduction. The Vice President of CASA, Tom Marling had this to say of the Albertan approach.
A process like this is not quick, but the high level of commitment of everyone around the table makes success possible. As a result, tremendous progress has been achieved and Albertan should anticipate further reductions as industry turns its attention to the remaining flares.
By consensus, CASA stakeholders agree to a voluntary approach with annual targets, supported by regulatory requirements. This consensus-based approach is said to be the direct reason for the province-wide reduction in flaring by 53 percent, which occurred between the years 1996 and 2001. The EUB also stated in 2002, that flaring had been reduced by 62 percent since 1996. Whatever the actual rate of reduction it is evident that much has been achieved in Canada, where it is now reported that about 92 percent of Gas is conserved or used in some way, and only 8 percent is flared. What is more is the fact that, all stakeholders are seriously dedicated to reducing gas flaring.
In Nigeria, such commitment is lacking. This is shown clearly by the several shifts in deadline dates and the fact that major projects designed to utilized Nigeria's vast natural resources were not constructed until recently. We will now examine the development of natural gas resources and the various projects in the next group.
THE DEVELOPMENT OF NIGERIA'S GAS RESOURCES
(NIGERIA'S GAS RESERVES AND PRODUCTION)
''Natural gas'' generally refers to gaseous form of petroleum consisting of mixtures of hydrocarbon gases and vapors, the more important of which are methane, propane, butane, pentane and hexane. The term is generically used for both Associated and Non-Associated gas, the former being that ''which occurs with oil in the same reservoir'', and the latter that occurs alone in a reservoir''. Associated gas either re-injected into the oil wells to enhance oil recovery where the situation of the reservoir permits it, or gathered and ''liquefied' to provide alternative energy source for domestic use or electricity generation. According to the stakeholders at a recent oil and gas sector stakeholders workshop organized under the auspices of the GGFR Partnership, Nigeria gas well over 187 trillion of proven, and trillion ''undiscovered but recoverable'' scf of gas reserve. This was also noted by the workshop to represent 50% of Africa's gas reserve. Nigeria thus is the 7th largest world gas province.
Indeed, Nigeria's gas reserves could, according to recent revelation be underestimated, suggesting that Nigeria' true gas reserves could be some 660 tcf compared to the current declared figure of 166 tcf, which ''represents only about 25% of what many experts believe to be true potential of some 660 tcf'. The ''huge disparity between actual and expectation is in itself the result of many years of bias against gas, where presumed gas-prone prospects were actively and deliberately left untested''. Gas production is expected to increase significantly over the next few years as gas flaring is phased out and new projects such as the West African Gas Pipeline project and the remaining three NLNG trains come on stream. According to SPDC, on the average, about 1,000 scf of gas is produced in Nigeria with every barrel of oil. Thus with 2.8 million barrels per day (bpd), about 2.8 billion scf of Associated gas is also produced daily.
Unfortunately, before 1999, up to 79% of the Associated gas in flared (ignited) or vented (unignited). This is equivalent to the value of about 500,000 barrels of oil for each day's generation. Thus, Nigeria fares more than any other country, accounting for ''a quarter of the gas flared in the entire world'
The statistics above, however, according to the special adviser to the President Obasanjo on petroleum and Energy, Dr. Edmund Daukoru, became brighter in 2004, because of the progress so far made by Nigeria in its war against gas flaring. He said '' only 43% of the Nation's Associated Natural Gas is currently flared as against the 70% flared in 1999''.
Gas flaring has indeed become one of the major environmental concern of the industry. Flaring has been traditionally blamed of lack technology to harness the gas, on the one hand, and until the 70's after the 1st oil shock, absence of the market for the gas as an alternative source of energy. Equally relevant is the fact that in the 1960s and 70s, there was little or no environmental consciousness in Nigeria. As a matter of fact, it was not until 1980 before global warming became an issue. The gas thus was flared into the atmosphere without regard to the environmental consequences.
One should not lose sight of the economic intricacies of gas flaring versus utilization. Algeria, for instance, has worked hard to reducer flaring and venting, it still occurs at location deep in the dessert where no local market exist and there is no way to bring the gas to the cost. As succinctly stated by Worika, the economics of associated gas utilization cost ten times as Non-Associated gas or re-injection is more expensive than flaring. Thus, the oil companies choose the cheaper option of flaring. Indeed, it sounds rather paradoxical, and as Worika puts it, "if gas has not been flared, the oil could not have been produced economically". This then strengthens the assertion that the gap between people who are looking for gas and those who have excess gas and routinely flares it, is "infrastructural lapse' .(and) the driver for building infrastructure is the price for which the gas will be sold. If the gas will not be sold at competitive price, which will enable investors get good returns for their investment, there will be no incentive to invest in these gas infrastructures and facilities". On the whole, considering the new status of gas in the global energy security debate, coupled with the associated environmental and social considerations, the economics of gas utilization is incomparably more favourable and viable for Nigeria than flaring it.
HARNESSING NIGERIA'S GAS RESOURCES
Nigeria, according to a World Bank estimate is currently losing on the average more than $2.5 billion (N332.5 billion) annually to gas flaring. At about 57% of the daily production of over 2bn cf, the volume of gas flared is said to be capable of generating up to 6GW of electric power annually. Nigeria could earn about $12 billion annually from natural gas export by 2009 when projects designed to end the burning of gas associated with oil extraction come on stream.
In a very recent report, Nigeria is stated is having the 7th largest gas reserves in the world, which is estimated at some 160 trillion cubic feet (equivalent to about 27 billion barrels of confronted by the enormity of its Gas reserves, the Nigeria Government and the oil companies were finally prompted into doing something about utilizing Natural Gas, as an alternative to the incessant Gas flaring which was prevalent in the country. This need to take active step in harnessing Nigeria's Gas Reserves was made even more expedient, because the Anti-flaring laws in Nigeria had failed to achieve the desire result. The oil companies and the government had previously shied away from investing in the Natural Gas Industry, because of its Capital Intensive Nature.
Other factors, which delayed adequate exploitation of Nigeria's Gas reserves, are that: the domestic demand for gas was not high enough and nether was international demand for the commodity firm enough to guarantee that investments by the oil companies will yield short-terms profits. Concerning the capital intensive Nature of the Natural Gas Industry, Philip Swanson an economic and flaring consultant for the World Bank had this to say: "Associated gas is unpredictable and difficult to collect, requiring huge investments in infrastructure that oil companies don't find profitable".
Nonetheless, the Nigerian Government in partnership with oil companies has geared some projects toward exploiting Natural Gas and thus reducing Gas Flaring. One of them is the Nigeria Liquefied Natural Gas (NLNG) venture, which is the almost publicized and possibly the largest of them all. In furtherance of this venture, a company Nigeria LNG limited, has been registered with the Nigeria National Petroleum Corporate (NNPC). The Nigeria LNG is a Joint Venture Company owned by the Federal Republic of Nigeria, represented by the NNPC, which owns 49% of its shares and other companies, such as Shell, which owns 25.6%, Totalfina Elf, which owns 15% and Agip, which owns 10.4%.
The entire LNG project is said to cost about 3.8 billion and has already commenced operations, with exports of LNG from the complete liquefaction plant, located at Finima, in Bonny Local Government of Rivers State. This venture is not a recent phenomenon as it has been at some stage of planning or implementation since the 70's. The Nigeria LNG Limited purchases and liquefies Natural Gas for export to overseas Markets Long term Natural Gas supplies have been secured by the company from its shareholders and in addition, four LNG ships have been bought with three of them currently hired out. There has also upfront sale of LNG expected from the plant; to buyers in Europe and USA fro 22.5 years starting from 199 (the expected date of commencement of production of liquefied natural gas). The company is exporting to the following European buyers: ENEL (Italy), ENAGAS (Spain), Botas (Turkey), Gaz de France (France) and Transgas (Portugal).
As was said earlier, the Nigeria (LNG) venture has an estimated cost of $3.8 billion. This is owning to the fact that such a project involves huge capital investments and huge risks. For instance, the cost of building the LNG ship which that will carry the liquefied gas is estimated at almost $200 million. Also, LNG ships are peculiar in the fact that they cannot carry any other commodity except LNG. This is because it is specially designed, and thus, an LNG venture cannot be without an LNG ship. It also takes huge amounts of capital to develop, construct and acquire LNG equipment, production installations, and distribution facilities.
As at the end of September 1995 only $1.36 billion had been contributed by the shareholders as equity and deposited in an escrow account. The company thus has the daunting task of raising the remaining amount either from International sources, or from further equity contributions by the shareholders. The Nigerian Government is also very earnest in its desire that the LNG venture meets with success. LNG project is expected to earn Nigeria $37 billion in 30 years, starting from 1999, and because of its huge economic prospects the Nigeria Government has gone to some extent, to attract and secure foreign investors in the venture and has even enacted a law that spells out the benefits and granted to the Nigeria LNG limited.
This law is known as the Nigeria LNG (Fiscal Incentives, Guarantees and Assurances) Decree no 39 of 1990 (hereafter, the Decree/ Act). This Act grants Fiscal incentives and investment protection to investors. Some of the fiscal incentives are as follows:
a) The status of pioneer company for taxation purposes is conferred on the company by virtue of the Act
b) The Company is granted tax relief for a period of 10 years commencing from the date of commercial delivery of LGN to Purchaser
c) Section 7 of the Decree/ Act exempts the Company and its contractors or sub-contractors from payment of import duties or other duties in respect of all necessary imports of plant, machinery, goods and material s to be used in the construction of, or incorporation in the plant, jetties, shipping, transmission facilities and ancillary work used in the company's business; amongst others.
The second schedule to the Decree contains the guarantee assurances and undertakings made by the government of Nigeria, to Nigeria LNG limited and its shareholders and it granted these guarantees in recognition of the huge investments, which have been made by the company to carry out purposes. These guarantees have effect from the 24th of April 1980 and will remain in force so long as the company exist and is carrying on the business of liquefying and selling LNG.
The Decree/ Act also provides for stabilization clauses, which are designed to reassure the foreign shareholders that there will be no unilateral changes in the fiscal and legal regime governing their contracts. This is welcomed by multinational oil companies who are more concerned with stability in their contractual relations with government as opposed to flexible contractual relation which may expose them to sporadic changes in the law of the host country.
Gas supply to the LNG project is to come initially from non-associated gas reserves and then it is expected that Associated Gas (AG) will fully used. However it has been alleged that the former is still being put to more use than the latter, despite the fact that the LNG project was originally designed to utilize Associated Gas that was being constantly flared away. As a matter of fact, it was only in November 2002 that the LNG plant was able to utilize 100% AG, but the amount of AG utilized since then has dropped far below that figure.
Oil companies in Nigeria are being accused of using as much associated gas as they can get away with while only a barely significant amount of AG is actually sold. Shell, for instance has stated that only 17.6% of Associated Gas was sold to the Nigeria LNG ltd, between the years of 2002 and 2003, and that the 17.6% represents 350 MMSCF/D, which constitutes a small portion only of the total amount of 1982 MMSCF/d of gas sold to the company, during that time.
This state of Affairs totally defeats the purpose for which the LNG project was created, as the implication of using more none-Associated Gas than A.G is to further encourage flaring of the latter. It has thus, suggested that a legal obligation to use AG, be imposed on the Oil Companies as it believed that they will not supply AG to the LNG project, where such a legislation is absent.
The next promoted as viable means of reducing gas flaring is the West African Gas Pipeline 9WAGP). This project has received even more criticism that the LNG project.
The West African Gas pipeline, like the LNG project is one that has been in the works for sometime (about 25 years), but actual construction work on the project only began in August of 2005. A feasibility report, prepared by the World Bank in 1992, determined that a natural gas pipeline originating from Nigeria to Benin, Togo to Ghana would be commercially feasible. The (WAGP) project aims to deliver Gas from Nigeria (via an approximately 680 kilometre pipelines) to Benin, Ghana and Togo. The World Bank gave support to this project in November 2004, when it guaranteed US$125 million for the construction of the pipeline. The project is estimated to cost about $590 million and is being promoted (by Chevron and Shell) as a gas flare reduction project. According to the US government: "the major positive environment impact of WAGP will be the development and use of gas currently flared in Nigeria.
Promoters of the project also claim that it will reduce carbon emission, produce chapter, more reliable and environmentally friendly energy and foster economic development and integration in Ghana, Togo, Benin and Nigeria. The WAGP project is to be built, owned and operated by a new company called: the West African Gas Pipeline Company (WAPC). This Company is to be owned by Chevron Nigeria Limited (36.7%, NNOC (25%), SPDC (18%) Volta River Authority of Ghana (16.3%) Society Beninoise de Gaz ((2%) and Societe Togolaise de Gaz S. A. (2%). This project, has however met with stiff oppositions from host communities, and severe criticisms from environmental and civil society groups.
Firstly, it has been argued that sponsors of this project have not been able to show just how; the pipelines would reduce flaring of associated gas in the Western Niger Delta region. The pipeline will be connected to the Escravos Lagos Gas pipeline, which was built to transport unflared non-associated gas, and was constructed without an environmental impact assessment (EIA). Also as concerns this project there are no means by which the use of AG can be enforced and so it seems that WAGP will end up another non-AG project (like its Predecessor, the LNG project).
Secondly, although the promoters of WAGP claim that the project is West African by origin and meant to address the needs of the people from that region, WAPCo, the company that will manage the WAGP is not registered in any West African country. It is rather registered in Bermuda, and will operate as an offshore company with major fiscal, environmental and social exemptions specifically allowed by the WAGP treaty and Enabling legislation.
Also in a bid to protect themselves from future liabilities, and compensations, the project proponents have demanded that, a West African Gas Pipeline Project Enabling Legislation be enacted at the National Assembly. The legislation will exempt WAPCo from compliance with Nigerian Laws that will guarantee good corporate practice and environmental protection. This move by the promoters has been criticized as a ploy to subvert the sovereignty of Nigeria, because if such a Bill is passed it will have the effect of robbing the Government of the right and power to prosecute them.
Thirdly, Ghana's Energy Commission has stated that the WAGP project will not be economically viable for the people in Ghana. This is because, the Ghanaian Government will be committed under its terms to buy WAGP's gas at a set price for twenty years, impacting on the countries budget and ruling out possible future alternative energy sources.
A Fourth ground for criticism of the project, is based on the fact that, the local people through whose communities the pipelines will pass know very little about the projects. Representatives from communities living near the pipeline route in Nigeria and Ghana report that they have not been properly consulted, suggesting that the World Bank, one of the main project financiers of the WAGP, would be violating its own commitment to invest only in projects that have broad community support. It is also alleged that only a few land owners have been approached by Chevron's agents and some have been paid a very small compensation of $20 for their land
Fifthly, it is maintained by civil society groups that the pipeline project risks prolonging ongoing conflicts in the oil and gas - rich Niger Delta. Representatives of these groups do not also believe that the pipeline would provide cheap energy or promote regional integration. Prominent amongst all these criticisms and oppositions however, is the fact that the WAGP project will seemingly use more non-associated gas and this render ineffective the claims made by the promoters that the pipeline will channel away associated gas' from existing oil fields where it is currently being burned, and thus contribute to putting an end to dangerous Gas Flaring in Nigeria.
This is a fundamental flaw in the Project, which takes after its predecessor (the LNG project) once again. These problems which have been associated with the above project, make it all the more doubtful that Government will be able to make its 2008 deadline. Apart from the NLNG and WAGP, there are other projects designed for gas utilization in Nigeria.
One of such projects is the Escravos gas project. This project is the first major project to gather and utilize Nigeria's offshore gas for both local and export use. It is a joint venture between NNPC (60%) and Chevron Texaco (40%) to recover associated gas from offshore fields. The project is located at Escravos, Delta State, Nigeria and it will extract Liquefied Petroleum Gas (LNG) from AG, and exports it via pipeline, to an offshore floating and offloading vessel (FSO). It commenced operations in 1997 and its first shipment of LPG was in September of the same year.
Another project is the Oso NGL Project. It is a joint venture between NNPC (49%) and Exxon Mobil (51%). The project will convert associated wet gas into natural gas liquids (NGLs) and its current production capacity is 50,000 barrels per day. There is also the Trans-Saharan Gas pipeline, which will be 4,000km long, and will link Nigerian Gas fields through Mail to Ben-Saf on the Algerian coast. Gas produced from the field will be sold to the European Market. The cost of the project is estimated at $7 billion, and is expected to develop the Natural Gas market and infrastructure in the Northern part of Nigeria.
Another one is the East Area Gas Project (EAGP) owned by Mobil Producing Nigeria. The EAGP will gather all gas produced from the East area fields, for re-injection and storage. Liquids will also be extracted from the gas, by an offshore NGL plant before it is re-injected.
The above-mentioned projects are only some of the natural gas projects in Nigeria. It is very important therefore, that more gas projects are developed existing ones improved and also something should be done about the shortcomings of the NLNG and WAGP. This is because it will help the efforts by the Government and oil companies to end gas flaring.
In the next detailed research, discussion was restricted to dealing with fundamental questions of Human Rights and Unprecedented Ruling of the Federal High Court in Nigeria.
GAS FLARING: THE USE OF HUMAN RIGHTS
The practice of gas flaring has been attacked by various writers and, is deemed to b against the human rights of the people living next to them. This is because it breeds grave environmental and health risks to these people and their communities. Gas flaring in Nigeria operates on a much larger scale, than is done anywhere else in the world, and the trend is not without its negative effects.
Flaring in Nigeria is said to contribute more greenhouse gas emissions than all other sources in sub-Saharan Africa combined, which as a result leads to global warming. Peter Roderick, Co-director of the Climate Justice Program, is quoted as saying the following ".The appalling waste or greenhouse gases in one of the world's poorest countries are a violation of Human Rights of those living subjected to the flaring.
Other effects of gas flaring are that, it exposes Niger Delta residents to an increased risk of premature deaths, child respiratory illness, asthma and cancer. Human Rights are used here to mean the Fundamental Rights of the people, guaranteed in the Constitution of the Federal Republic of Nigeria, 1999 (hereafter the 1999 Constitution). In a newspaper report, the following was said:
Fundamental rights are those inalienable rights of individuals which has been recognized, accepted and entrenched in the constitutions of civilized nations. It is the minimal accepted standard of respect for individuals that cannot be arbitrarily denied or deprived them of without consequences.
In Nigeria, these rights are contained in Chapter 4 of the 1999 Constitution, and their provisions can be enforced against violators in any law court in Nigeria. These rights have also been recognized by international instruments e.g. The African Charter on Human and Peoples Right (which provides for the right to a clean and healthy environment), the Universal Declaration of Human Rights etc.
Nigeria has incorporated into its law the African Charter on Human and People's Right. The law is known as the African Charter on Human and People's Right (Ratifications and Enforcement) Act Cap A9, Vol. 1 Laws of the Federation of Nigeria 2004. It is important, in that, it unequivocally provides for rights that protect the environment and human rights, these rights are justifiable in Nigerian courts. Section 20 of the 1999 constitution, which has similar provisions, states the following: "The state shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria". This section and the entire discussant under which it falls, is however non-justifiable. A citizen cannot bring an action for the breach of its provisions.
It is interesting to note that, there had been no judgment in Nigeria, which pronounced upon the legality of Gas flaring or the human rights of affected persons (to their benefit) , until recently. In the Next section, we will examine the judgment and some relevant laws, which affirm the Human/Fundamental rights of citizens living in communities scourged by Gas Flaring.
THE NOVEMBER 14TH JUDGMENT OF THE FEDERAL HIGH COURT OF NIGERIA.AN OASIS
This judgment, (the first of it's kind) was given by the Benin Federal High Court, on November 14th 2005, in the case of Mr. Jonah Gbemre v. Shell Petroleum Development Company Nigeria Ltd, Nigerian National Petroleum Corporation and Attorney General of the Federation (hereinafter called the Jonah Gbemre case).
This case was filed by communities from across the Niger Delta, in the Federal High court of Nigeria, against Shell, Exxon Mobil, Chevron Texaco, Totalfina (Elf) and Agip Joint Venture Companies, the NNPC and the Nigerian Government, to stop gas flaring". However because of the copious unwieldy list of members, the court granted leave to the applicant (Mr. Jonah Gbemre) to commence the proceedings for himself and as representing the other members, individuals and residents of Iwherekan community in Delta State of Nigeria.
The applicants sought an order enforcing or securing the enforcement of their fundamental rights to life and dignity of human person, as provided for by sections 33(1) and 34(1) of the 1999 Constitution, and Articles 4, 16 and 24 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.
Section 33 (1) of the 1999 Constitution, states the following:
Every person has a right to life, and no one shall be deprived intentionally of his life save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.
Section 34 (1) of the 1999 Constitution, provides as follows:
"every individual is entitled to respect for the dignity of his person and accordingly":
(a) no person shall be subjected to torture or to inhuman or degrading treatment.
(b) no person shall be subjected to torture or to inhuman or degrading treatment.
(c) no person shall be held slavery or servitude
(d) no person shall b required to perform forced or compulsory labour.
Both section 33 and above fall under chapter 4 of the 1999 constitution. Section 46(1) of the 1999 Constitution and under the same chapter provides as follows:
Any person who alleges that any of the provisions of this chapter been, is being or likely to be contravened in any state in relation to him, may apply to a High Court in that state for redress.
Article (4) of the African Charter (supra) also provides the following:
Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.
Article (16) of the African Charter states the following:
Every individual shall have the right to enjoy the best attainable state of physical and mental health. State parties to the present charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.
Article 24 of the African Charter provides: "All people shall have the right to a general satisfactory environment favourable to their development". The applicant sought a declaration that the above laws included their right to a clean poison free, pollution free and healthy environment. They also sought a declaration on the following:
(a) That the actions of the 1st and 2nd respondents in continuing to flare gas in applicant's community constitutes a violation of their fundamental rights guaranteed in the above mentioned laws (i.e. the 1999 constitution and the African charter).
(b) That the failure of the 1st and 2nd respondents to carry out environmental impact assessment in the Applicant's community concerning the effects of their gas flaring activities was a violation of section 2 (2) of the Environmental Impact Assessment Act. The said section requires that an environmental impact assessment be done in accordance with the provisions of the Act, where a proposed project activity is likely to significantly affect the environment.
(c) That no valid ministerial certificates have been obtained by the 1st and 2nd respondents, authorizing their gas flaring, and that accordingly, they were acting in violation of section 3(2) of the Associated Gas Re-injection Act.
(d) That the provisions of section 3 (2) (supra) and section (1) of the Associated Gas Re-injection (Continued Flaring of Gas Regulations); under which gas flaring may be continued, are inconsistent with the provisions of the African Charter and the 1999 Constitution, mentioned above.
(e) That the 1st and 2nd respondents in continuing to flare gas in their community, exposes them to serious ailments such as respiratory disease, premature death, asthma, and such negative impacts on the environment as, climate change, Acid rain etc.
(f) That the 1st and 2nd Respondents have no right to continue to engage in gas flaring, in violation of their right to life and to a clean and healthy environment.
Counsel for the Applicant (B.E.I Nwofor, SAN) argued that section 33(1) of the 1999 Constitution guaranteed the right to life and proceeded to the Black's Law Dictionary for the definition of life, since the constitution does not provide for such a definition, and neither does the Interpretation Act in any of its sections.
The Black Law Dictionary defines life as follows:
(a) The sum of all the forces by which death is resisted.
(b) The state of the humans in which its organs are capable of performing their functions
(c) All personal rights and the enjoyment of the faculties.
He submitted that this definition gives a wide meaning to the right to life, and not just a narrow meaning of the right. He stated further that the right is not just to have one's head cut or guillotined, but also more significantly, that it includes the right of a human being to have his organs function properly and to enjoyment of all his facilities. He argued that the 1st and 2nd Respondents were engaged in massive gas flaring in the Applicants community (Iwherekan), and that this flaring poisons and pollutes the air, water, food and vegetation in that community and cause terminal diseases as chronic bronchitis, cancer, painful breathing etc. He also argued that the right to life will only have meaning if the things that endanger it are removed and that this massive flaring has the effect of endangering and diminishing life and does not lead to its full enjoyment, and that accordingly the Respondents by their actions have violated the right to life of the Applicants. Learned counsel for the Applicants also insisted that the 1st and 2nd Respondents had no valid ministerial certificates, permitting them to flare gas and that their actions are thus punishable under section 4 of the Associated Gas Re-injection Act (supra), which makes such act an offence and the violators liable to necessary penalties prescribed thereof.
On the issue of breach of the right to dignity of the human person, the learned counsel for the Applicants referred to section 34(1) of the 1999 constitution which came up for interpretation by the court in the case of Uzuokwu v. Ezeonu which came and submitted that the right to dignity of human person indulges the right not to inflict any inhuman or degrading treatment - which includes infliction of not only severe bodily harm, but also, mental anguish and suffering. Tobi JCA in the above case defined the word "inhuman" as "the opposite of "human" and that if followed that inhuman treatment is a barbarous, uncouth and cruel treatment, which has no human feeling on the part of the person inflicting the barbarity or cruelty".
The word dignity conveys the meaning or connotation or being degraded at least in one's exalted estimation of his societal status or societal standing.
And that the court has jurisdiction to give broad and liberal interpretation to the constitution, particularly when the rights of the individual are involved in respect of matters provided for in the constitution.
Nasir J.C.A, in the same case made the following statements:
The phrase "inhuman treatment" means in my opinion, any barbarous or cruel act, or acting without feelings for suffering of the other and the "person" includes not only the physical body but includes the "psyche" and other mental attributes.
The learned SAN, also contended, that section 3 of the Associated Gas Re-injection Act as well as the Regulations made under, are inconsistent with the rights to life and dignity as guaranteed in section 33 and 34 of the 1999 constitution respectively. He also stated that where there is inconsistency of any Act with the provisions of the constitution will prevail and the Act would be null and void to the extent of its inconsistence. Counsel for the Applicants stated further that this inconsistency lies in the fact that the constitution having guaranteed rights to life, (which includes rights to a healthy environment) some cannot be whittled down by an Act of the National Assembly, which allows for continuation of gas flaring which pollutes the air, water and food. He argues that both statues could not stand side by side. The learned counsel stated also that the Honourabe Attorney General of the Federation and Minister of Justice (3rd Respondents) was joined in the suit t come and explain and justify the constitutionality of the above enactment. The AG did not however turn up and so the learned SAN thereby urged the court to declare the Associated Gas Re-injection Act null and void.
The Respondents on their own part, denied practically, all the claims made by the respondents and in turn made various claims against them, which include the following that Mr. Jonah Gbemre, did not have authority to represent members of the Iwherekan community, that Fundamental Rights Enforcement Proceedings are applicable only to an injured individual, and not to one who is well and healthy, that the 1st Respondents do not flare gas at Iwherekan, and that the only facilities they have there are pipelines, that the activities of the Respondents in Relation to gas, exploration and processing has not caused any pollution of the air or any of such ailments as claimed by the appellants, that their operations have in no way affected the fundamental rights of the Applicant alleged and that these oil and gas activities are carried out in accordance with good oil field practice as permitted by the laws of the Federal Republic of Nigeria, that at the time they commenced operations in the area, they were not required by law in force to carry out environmental impact assessment and that there has been no oil and gas development in the community that would warrant such, that the first Respondent has a flare certificate wherever it has a flare site, and that they do not have a flare site in Iwherekan amongst others.
The learned counsel for the Respondents, Chief T. J. Okpoko, SAN and his assistants, however failed to adequately defend the claims they made and they kept requesting several adjournment's and even filed different motions on Notice for stay of proceedings at the Court of Appeal, Benin Division. All these they did in a bid to frustrate the High Court and delay it, in rendering justice in the case.
The Federal High Court in Benin, acting through its learned judge, Justice C.V. Nwokorie denied the Respondents their last application for adjournment, whereupon the lead counsel for the 1st and 2nd Respondent and all his junior Assistants walked out of the court, without observing the usual courtesy of bowing to the Bench.
Owing to the reaction of the Respondents, the learned judge adjourned the case for judgment. This judgment was then given on the 14th day of November 2005. Justice C.V. Nwokorie declared Nigerian Law to be unconstitutional, and ordered the Attorney General to meet with the federal Executive council, in order to bring the law into line with present day practice, rules and regulations governing oil and gas activities. The Federal High Court also ordered the Oil Companies and their workers to stop gas flaring the Nigeria Delta as it violates guaranteed constitutional rights to life and dignity.
The judge also held the following:
(a) That Mr. Jonah Gbemre had authority to represent himself and the community;
(b) That the fundamental rights to life and dignity of the human person, as guaranteed by sections 33 and 34, respectively of the 1999 constitution inevitably includes the rights to clean, poison free pollution - free healthy environment.
(c) That the Respondents continuous Act of gas flaring amounted to a gross violation of their (the communities) fundamental rights to life (including healthy environment) and dignity of human person as enshrined in the constitution.
(d) That failure of the respondents to carry out Environmental Impact Assessment in the Applicants community amounted to a clear violation of section 2 (2) of the Environmental Impact Assessment Act (supra) and also contributes to a further violation of their human rights.
(e) The court, apart from holding that specific sections of the Associated Gas Re-Injection Act and of the Regulations made under it, were inconsistent with the Applicants rights to life and dignity guaranteed under the constitution, also declared that the above laws were inconsistent with the African Charter on Human and peoples Rights (Ratification and enforcement) Act supra.
This decision by the Federal High Court, follows the unprecedented Ruling given by the African Commission on Human and peoples Right, in the case of, the social and Economic Rights Action Center for Economic and social Rights v. Nigeria, where Nigeria was found to have breached the rights to environment under Article (24) to life under Article (4) to health under Article (16), amongst other.
The provisions of the African charter (supra), reinforce the provisions of the 1999 constitution, in relation to the rights to life and dignity. The judge, also put a restraint upon the Respondents, their servant or workers, from engaging in further flaring of Gas in the Applicant's community and stated that they are to take immediate steps to stop further flaring of gas in that community. The judge therefore dismissed the case put forwarded by the 1st and 2nd Respondents, as well as their various preliminary objections, and declared that they lacked merit.
This judgment is an Oasis, because of the fact that it is unprecedented, and is a Major Victory for the host communities that have for long been exposed to the negative impacts of flaring. Rev. Nnimmo Bassey, Executive Director of Environmental Rights Actions (ERA) has said this of the judgment:
For the first time, a court of competence has boldly declared that Shell, Chevron, and the other Oil Corporations have been engaged in illegal activities here for decades.we expect this judgment to be respected and that for once the oil corporations will accept the truth and bring their sinful flaring activities to a halt.
Peter Roderick, Co-director of the Climate Justice Programme has also commented on the Judgment as follows:
This is a Landmark judgment.we applaud the courage of the judge in giving a clear message that flaring is outdated practice that is not acceptable in Nigeria, we also applaud the courts decision to apply rights guaranteed by the Nigerian constitution to an environmental case for the first time in Nigeria, in line with other countries.
The Federal High Court also summoned the Attorney General and Minister of Justice, the Ministry of State for Petroleum resources as well as the Managing Directors of NNPC, SPDC, and NDDC amongst others, to appear before him on May 31, 2006 to show just how they intend stop gas flaring. The court had also ordered Shell to stop gas flaring in the Iwherekan by April 30, 2007.
This order has however been overturned by the Court of Appeal, on an application by Shell. The said court ordered that no such hearing should take place on that day (May 31st) or any other day, and it granted a stay of execution in that respect thereof.
The Affected communities have however field a notice of appeal against the above ruling of the Court of Appeal, and this is the present state of affairs. Shell has also filed a notice of Appeal challenging the ruling of the Benin High Court, and its action has met with severe criticism and disapproval from Environmental Rights Action (ERA). According to its executive director, Nnimmo Bassey:
This is typical of Shell. It is not known to respect human rights or act in anyway to protect the environment. This is a landmark judgment that confirms its operations have been violating fundamental human rights and the Rights of its host to a dignified life.
The notice of appeal does not however affect the judgment of the Federal High Court, which remains the position until a contrary judgment is given. It is now the hope of many that where such an appeal is before the appellate court, it will hasten to dismiss it and thus reaffirm the position stated by the court of first instance.
It is worth noting, however if this case were to have been brought against Shell (and by extension, other oil companies operating in Nigeria) in more advanced countries, which are totally unbending when it comes to gas flaring, the position would have been different. This point is given strength by a case brought against Shell in the United States. This case is known as United States of America v. Shell Offshore INC and Shell Exploration and Production Company. This case was instituted at the United States District Court, in the Western District of Louisiana (particularly, at the Lafayette-Opelousas Division). Both parties arrived at a Stipulated Civil Settlement and Shell admitted to the claims/allegations made against it by the United States of America that, it had engage in Unauthorized flaring and /or venting of natural gas in excess of small volumes (much of which was economically recoverable) at different locations in the country.
The amounts of Gas alleged to be flared by Shell range from Fifty Thousand Cubic Feet per day to about Six Million Cubic Feet a day, between the years 1975 and 1999. Shell acknowledged that it undertook such flaring and venting without first obtaining permission from Appropriate Authority and that it also failed to state accurately the amounts of natural gas flared or vented from its various units 345. Shell also admitted that it failed to accurately and timely calculate and pay royalties on the natural gas flared and/or vented until it was told to do so. Shell, consequently agree to pay the United State of America Forty-Nine Million Dollars ($49,000,000) minus a credit of One Million, Six Hundred Seventy-Eight Thousand, One Hundred Twenty-four Dollars ($1,678,124) for royalties already paid in full final and complete settlement of all possible claims against it, amongst others.
This attitude expressed by Shell in America, is at odds with the way it is presently acting in Nigeria, in quite similar circumstances, Shell admitted to all claims made by the US government and agreement and agreed to pay it the above enormous amount for breaching its laws. Meanwhile, in Nigeria, all claims made by the communities against Shell were vehemently denied. Shell has chosen not to respect the judgment of the Federal High court and has accordingly filed a notice of appeal against it. It is also quite unimaginable that Shell would show the same respect to the Nigerian Government and admit that it has not paid royalties die or that it did not accurately calculate the amounts of gas, which it flared.
Nonetheless, it is a fervent hope every Nigerian must carry, that some day, Shell and other oil Companies operating in the country, will own up to their liabilities and misdeeds, and indeed be genuinely concerned about reducing gas flaring.
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