Daily Independent Online.
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Thursday, June 17, 2004.
Towards sustainable environmental regulation regime
Vincent Obia examines the efforts of Environmental Rights
Action/ Friends of the Earth, a non-governmental organisation, in galvanising
the efforts of civil society, executive and legislative bodies alike towards
achieving a more congenial environmental regulation regime.
The
sheer size and scope of wealth and poverty existing side by side in
Nigeria’s resource-rich environments make the country’s
environmental regulation system an obvious target for controversy.
Among
environmentalists, lawyers, lawmakers, and residents of resource-bearing
communities, there is a growing consciousness of this contradiction, and
demands for upgrading the country’s environmental codes are being made
more and more loudly.
The launch of the Environmental Law
Reform Project, late last year, by foremost environment and development group,
Environmental Rights Action/Friends of the Earth, Nigeria (ERA/FoEN), marked
one of civil society’s boldest attempts to transform the existing
legislative and institutional framework on the environment from what has been
described as their anti-conservation nature to an icon of sustenance for the
country’s environment, its humans, flora, and fauna. This year’s
World Environment Day, June 5, coincides with the period of renewed concern
within government and civil society in Nigeria about legislative processes that
would facilitate protection of the environment. ERA’s law reform
initiative is part of a wider trend whereby civil society groups try to
galvanise efforts of the civil populace as well as executive and legislative
bodies to bring about people-oriented reforms.
The Media Rights Agenda, another
non-governmental organisation (NGO), had been trying to push through the National
Assembly a freedom of information bill, before President Olusegun Obasanjo
announced its replacement with another bill last May 29. ERA/FoEN has paced
through various stages in the attempt to achieve environmental laws reform in
Nigeria, and it recently proposed an Environmental Protection Bill (EPB), which
it is trying to popularize in the National Assembly. Last April 16 in Abuja,
ERA/FoEN organised a National Consultative Conference on Environmental Law
Reforms in Nigeria. It was a stakeholders’ forum meant to assemble and
engage the federal legislative and executive arms of government on the need to
initiate a comprehensive environmental laws reform process, as well as finalise
discussions on both the draft constitutional and statutory amendments relating
to the environment, and the draft of the ERA/FoEN-sponsored Environmental
Protection Bill. According to executive director of ERA/FoEN, Mr. Nnimmo
Bassey, “Our interactions with communities, individuals and even the
forces of environmental degradation and abridgment of rights have given us a
clear understanding that we cannot truly secure and enjoy environmental human
rights without a suitable legislative architecture.” He said that,
“Our environmental law regime is essentially based on torts, and for some
time, these laws have been exploited by offenders, and sometimes a timid
judiciary to deny victims justice.” He, however, applauds some judges who
have, despite the restrictive law regime, tried to creatively expand judicial
latitudes by relying more on precedents to redress injuries of victims of
environmental offences. For him, the English common laws, which form the basic
format of Nigerian laws, must be reviewed to lessen the burden of judicial
lawmaking on the judges.
ERA/FoEN had commissioned a team of
lawyers to review the laws of the country as they relate to the environment,
and the team’s work resulted in the proposed Environmental Protection
Bill, and the proposed amendments to some of the existing statutes. A
broad-based National Consultative Conference sponsored by ERA/FoEN November
last year adopted its three-pronged approach as a framework for pursuing a
radical reform of Nigeria’s environmental laws. The approach involves
constitutional reforms that would entrench in the Constitution people oriented
provisions that protect the country’s bionetworks; statutory amendments,
which aim at evaluating and modernising laws that directly affect the
environment; and enactment of a comprehensive environmental law to be called
Environmental Protection Act of Nigeria.
The ERA/FoEN-sponsored constitutional
reform proposes, among others, introduction of a new section 44 in chapter 4 of
the Constitution, which will entrench and enforce the right to clean and
satisfactory environment, thus, making it justiceable. Other constitutional
changes include:
“Reform
of the archaic rule of locus standi through the
introduction of proposed new section 6 (7), thus making environmental
protection the duty of every one.
“Introduction
of the right of the people to own and control their own resources through
introduction of the proposed new section 45 in the Constitution.
“Deletion
of the Land Use Act from the Constitution through amendment to section 315 of
the Constitution.
“Power
to legislate: in order to remove the needless ambiguity with respect to the
power to legislate on the environment, it is proposed that environment should
be explicitly included on the concurrent legislative list in the second
schedule to the Constitution.”
Under statutory amendments, ERA/FoEN
suggests Oil Pipeline Act (Amendment) Bill that would give land owners more
control over activities on their land; Petroleum Act (Amendment) Bill, which
will devolve to private and communal land owners right to approve oil
production activities on their land; Minerals Act (Amendment) Bill, which will
among others, give land owners and occupiers prospecting and mining rights
without ministerial authorisation; Environmental Impact Assessment Act
(Amendment) Bill that includes provisions for active involvement of host
communities in environmental impact assessment, and stiffer punishment for
violation of impact assessment provisions; Criminal Code (Amendment) Bill,
which includes introduction of individual and corporate liability for
environmental offences; Associated Gas Re-Injection Act (Amendment) Bill that
involves a provision for elimination of gas flaring by October 1,2005; Tin
(Miscellaneous Provisions) Act (Amendment) Bill; and the Land Use Act (Repeal)
Bill that will abrogate the Land Use Act.
Then,
the Environmental Protection Bill, which sets out in comprehensive terms a new
package for the preservation of the environment.
Bassey believes there is something
radically wrong with the present body of laws governing the use of our
environment. Citing the case of the West African Gas Pipeline project, where
the operating company is registered in Bermuda, but neither incorporated nor
registered in any of the West African countries - Nigeria, Ghana, and
Togo - hosting the project, and therefore not subject to strict
environmental regulation of the host countries, the ERA/FoEN boss bemoans that
thought of foreign exchange earnings has tended to overshadow regard for
“our fragile environment.”
The thinking of environment obsessed
groups like ERA/FoEN seems also to bother members of both the National Assembly
and the Federal Executive Council. Mr. Emeka Atuma, chairman, House of
Representatives Committee on Environment and Ecology, feels the myriad of
environmental problems confronting the country would be better tackled by
enactment of general and specific laws on the environment, which would be
immune from the eccentricities of executive power. “In our country, there
is a myriad of matters relating to the environment that are urgently waiting to
be legislated upon,” Atuma stated in his paper, entitled: “Using
legislation to redesign the institutional framework for environmental
management,” in support of the ERA/FoEN environmental laws reform effort.
To the legislator, “legislation is not only needed to redesign the
institutional framework for environmental management. It is also needed to
redesign the statutory framework for the management of environmental problems
confronting the nation.” He said, “Our environmental policies,
which are at the moment referred to as executive policies on the environment,
must be legislated upon. This is necessary in order to avoid midstream and,
sometimes, arbitrary, changes by governments in power.”
Atuma canvassed a “National
Environmental Policy Act,” to promote harmony between man and his
environment as well as prevent damage to the environment, in “recognition
of the fact that modern technology and the ‘expansionist ethic’ of
capitalism must be redirected in such a manner as would allow these phenomena to
function more in harmony with the natural environment.” He also called
for a re-enactment of the law on the existing Federal Environmental Protection
Agency (FEPA) to create an Environmental Management Agency that would regulate
industrial emissions and wastes, and other nuisances that pollute the land,
air, and water, including the controversial genetically modified organisms
(GMOs). “This law should be followed up by what I would like to call
‘specific legislations’ such as, a law on water resources to regulate
management of the water resources; law to ensure supply and distribution of
clean, safe drinking water, and effective handling of sewage; a town planning
law to control land development, mining activities, and disposal of toxic
substances; law to regulate use of insecticides, fungicides, and herbicides;
law to regulate ocean dumping, oil spillage, and related matters; law to
protect endangered animal and plant species; law to encourage environmental
education at primary and secondary school, and community levels; and a law to
regulate noise levels for automobiles, air conditioners, construction sites,
and other industrial concerns.”
Atuma told Daily Independent
that his committee had presented the National Environmental Policy Bill to the
House, which would comprehensively tackle environmental problems confronting
the country, from desertification in the northern parts, to erosion and oil and
gas pollution in the south. He disclosed that the bill had reached the
committee level, and “it will be presented to the House when it resumes
on July 20.” According to him, the House of Representatives has already
passed a Shelter Belt Bill meant to create a shelter belt of about 1,760
kilometres length and 2 kilometres width that will run from Borno State to
Sokoto and Jigawa States.
Chairman of the Senate Committee on
Environment and Ecology, Senator Ibiapuye Martyns-Yellowe, in a paper titled,
“Setting a legislative agenda for environmental laws reform in
Nigeria,” canvassed for “a paradigm shift in perception of the
environment from the point of view of a resource that must be exploited for
economic benefits to that of a heritage which, though for exploitation for
wealth generation for the common good of all, must be enriched, or
preserved…and transmitted from generation to generation.” He said
because FEPA could no longer function effectively as a regulatory authority,
having being subsumed in the Federal Ministry of Environment, to “fill
the lacuna…the Committee is considering the repeal of the FEPA Act and
the enactment of fresh legislation establishing a new regulatory body for the
environment that will encompass the broader concept of management, and not just
protection.” Martyns-Yellowe called for harmonisation of waste management
enactments and enunciation of an integral global waste management legislation
that covers both the oil and non-oil sectors, including “legislation to
ensure recycling of non-degradable waste.”
In view of the dangers posed to
subsistence by global warming, rising temperatures and sea levels, and gas
flaring especially in costal or littoral communities, Yellowe suggested a more
proactive federal legislation that would compel companies to take care of the
environment, and “be more liable for environmental hazards.” Noting
the inadequacy of the Oil in Navigable Waters Act of 1990, the only law
directly dealing with pollution of the sea and navigable rivers in the country,
he advocated review of the law to enable it address damages to the environment,
and protection of the country’s coastlines and creeks from incidents of
oil spill from burst pipelines, oil production platforms, blast, and other
pollutants from ships.
Yellowe proposed, among others,
domestication of all international environment and ecology conventions and
protocols to which Nigeria is signatory; and legislation to drive closer
partnership between host communities and companies whose activities affect the
environment. He disclosed that his committee was working on a bill for a
National Ecological Commission Act to tackle the country’s ecological
problems.
Minister of Environment, Col. Bala Mande
(Rtd.), speaking on “The challenges of environmental law reforms in
Nigeria,” decried what he termed the non-elaboration of environmental
issues in the country’s Constitution. He called for elaborate
constitutional enactments on the environment, saying issues of the environment
should be clearly designated into the exclusive, concurrent, and residual lists
of the Constitution to avoid conflict. Mande told Daily Independent
that his ministry was working towards reform of the forestry laws to make the
community more involved as stakeholders and owners of forest resources.
“This is an aspect of resource control,” the minister emphasised.
But Mande, who contested and lost last year’s governorship election in
Zamfara State under the Peoples Democratic Party (PDP), would not comment on
control of oil and gas resources. For him, “it is a constitutional
matter.”
Coordinator of Ijaw Monitoring Group,
Joseph Evah, believes vested sectional interests remain the bane of
comprehensive environmental laws reform in Nigeria. He said, “While
people-friendly environmental law reforms in respect of forestry and other
non-oil resources have often got easy sail through the federal legislature, oil
and gas-related environmental law reforms face multifarious, often amusing and
thoughtless, opposition.”
Observers say sectional considerations
are a huge obstacle to the passage of comprehensive, effective, and efficient
environmental laws reform in Nigeria. But ERA/FoEN has promised to try. It has
resolved that there is an urgent need to harmonise the efforts of civil
society, the federal environment ministry, and the National Assembly towards
achieving reform of the legal and institutional framework for environmental
management and protection in Nigeria. According to the communiqué of its
second national consultative conference on environmental laws reform in
Nigeria, “ in furtherance of the need to harmonise all the parallel
efforts in order to achieve synergy of purpose and action, there is a
compelling need to raise a technical committee of civil society to liaise with
the technical/legal departments of both the federal ministry of environment and
the National Assembly committees on environment and ecology.”
Apparently, the
need for a more congenial environmental laws regime seems to bother every
Nigerian. What appears to be lacking is political will to take the bull by the
horns. The ERA/FoEN initiative represents a volte-face in government and civil society
thinking on the environment. How long it would take to produce the badly needed
change in the body of Nigerian environmental laws remains to be seen.
