A Review of the Nigerian Energy Industry

Oil exploitation, the environment and crimes against nature

Ledum Mitee

03 April 2012, Sweetcrude, Lagos –
SINCE the first commercial production of oil in Nigeria in 1956, it has signalled the beginning of a profound transformation of Nigeria’s political and economic landscape. Since the 1970s, oil has accounted for over 80 per cent of the Nigerian government’s revenue and 95 per cent of the country’s export earnings.

All of Nigeria’s oil and gas come from its Niger delta region which sustains the largest wetland in Africa and one of the largest wetlands in the world. Consisting of approximately 20,000 square kilometres of mangrove forest, fresh water swamp, coastal ridges and fertile dry land forest, seasonal flooding and sediment deposits over thousands of years have made the land in the region fertile.

The immeasurable creeks and streams have in the past, provided habitat for an abundance of fish and marine wildlife. Abundant rainfall and the fertility of the land, rivers and sea have set the conditions of the Niger delta to have one of the highest rural population densities in the world.

The Niger delta region is of tremendous strategic economic importance to Nigeria. This is because Nigeria’s main strategic economic resource – oil and gas – are concentrated in the region and since these minerals constitute the country’s economic live-wire, the Niger delta region could rightly be regarded as holding the key to Nigeria’s economic prosperity and greatness.

While the presence of these huge reserves of oil and gas has turned the Niger delta into the economic “jewel in the Nigerian crown,” the exploitation of these resources have been carried out in such unsustainable manner that not only are the people denied the benefits derivable there from, but their very means of livelihoods and sustenance have been threatened thereby.

In spite of the stupendous wealth that have accrued from decades of oil activities and production in Nigeria, there is surprisingly little good quality independent scientific data on the over-all or long term effects of hydrocarbon on the oil producing communities. There is no doubt, however, that oil pollution and pollution from oil activities has clearly and seriously damaged the environment and the livelihood of those living in the oil producing communities.

The moist, damp and humid forest within the lowland rain forest environment is home of such crops like cassava, yam, banana, pepper which are grown by the people for their basic subsistence. As the incessant spill occurs, it spreads into farmlands and water bodies. The toxic crude seeps into the ground and is taken up by the plants’ roots.

Furthermore, as most of the spills are accompanied by fire, most of the impacted area is completely degraded leaving only thick encrusted earth which is black in colour.

Muddy pools of weathered crude
The land is baked and the once fertile soil turned into a black and hard residue devoid of nutrients. Muddy pools of weathered crude are found in several places at spill sites while the deforested area are re-colonised by invasive seedlings of various species.

Apart from the crops, marine life also suffers from the toxicity of oil pollution as most of the oil pollution spread to the tidal rivers and streams. When this happens, the mangrove forest, home to most types of fishes and seafood, become heavily contaminated and the fishes find it difficult to survive. Sheen of oil can be seen on the rivers even long after oil pollution had occurred.

The environment and conflict
Whilst these environmental devastating effects of oil production are known, very little time is taken to ascertain their role in the crisis situation in the region.
In this respect it would be appropriate to start with the fact that like, most indigenous peoples, the peoples of the region, have traditions and customs deeply rooted in nature which have helped them to protect and preserve the environment for generations. The land on which they lie and the rivers which surround them are viewed by them not just as natural resources for exploitation but with deep spiritual significance. Land is viewed as the abode of our ancestors from where they oversee our lives, it is also a god and we revere it as such. Forests are not a collection of trees and the abode of animals.

This is why some forests and trees that we consider sacred cannot be cut indiscriminately without regard to their sacrosanctity. When these are destroyed or desecrated, the people do not see the destruction of some factor of production but the abode of their ancestors, their sacred grooves and shrines which is their bounden duty to defend and protect otherwise they suffer some severe consequences.

An interesting case is that the Yorla Oil Field in Ogoni, which has witnessed some of the worst scenes of oil spills and blow-outs. The area occupied by the oil wells that erupted causing the pollution, was an ancestral forest area with deep spiritual significance to the community. Due to the veneration the community attached to the forest, it was a conserved area by the community. But with the discovery of oil, Shell moved into the area and destroyed a large part of the forest, whilst the remaining part of the forest was destroyed during the oil pollution and the conflagration that accompanied it. Till today the people hold on to the view that the eruptions and mysterious deaths in the community are caused by the anger of their ancestors.

Setting the above dominant and pervasive African concept of the environment against the fact that the resources are being exploited for the Nigerian state by foreign multinational corporations with little understanding of, and scorn regard for our spiritual attachment to nature and the environment, an inescapable fault line immediately emerges.

Since these multinationals provide the technology for translating the rich resources of the Niger delta into wealth and in fact are operators of the joint venture arrangement with the Nigerian state, they practically control the key to the country’s economic prosperity.

This grip which these companies have on the country’s economy is occasionally used by them to prod or even blackmail the government into acts of violent oppression. One notable instance was during the height of the Ogoni campaigns, when in requesting the Abacha regime for permission to set up a special force for its protection, Phil Watts, the then Managing Director of Shell wrote: “We must emphasize that SPDC produces more than 50 per cent of Nigeria’s oil which has consequential major impact on the country’s economy. To ensure a continuation of operations at the present level requires the provision of maximum protection … SPDC will fully support the cost of setting up the contingents.”

The Nigerian state, therefore, are always ready to deploy its security forces at the disposal of the oil companies and for the protection of the oil exploitation companies who are always virtually at conflict with local communities.

This has led local communities to allege, with justification, that there is a conspiracy between the oil companies and the Nigerian state not only to exploit them but also to repress and even kill them. This produces a burning sense of injustice on which the various forms of agitations in the region potentially feeds.

It becomes extremely difficult to counter such arguments in the face of available evidence. Although under Nigerian law, a licencee of an oil mining lease is precluded from exercising its mining lease where, inter alia, the land is a sacred forest, yet every day dwelling houses, shrines and sacred grooves are being destroyed for oil exploitation. Also there does not appear to have been a single prosecution of corporations for environmental pollution despite the huge oil pollutions with devastating consequences that have been recorded in Nigeria, yet under our laws, to pollute the water or land is a criminal offence.

A rights approach to deterrence: The point has to be made that even where a company has been adjudged guilty or liable, there has to be a sanction that would sufficiently deter. This is so because if the only sanction is for the payment of some nominal fine, rather than deter, it would encourage the corporations to pollute and pay the meagre fines.

The emerging trend the world over is to impose strict liability on companies for pollution caused by them. This is in recognition of the fact that if a polluter can be found, there is no guarantee that any compensation paid out will be spent on clean up, and that clean up is likely to fall upon the public purse in any event.

Legislative, and more importantly enforcement measures, are put in place to encourage companies to limit their environmentally damaging activities, not because to do otherwise would be a crime, but rather because to do otherwise would be economically unwise. It was for this reason that the Niger Delta Technical Committee that I headed, recommended the establishment by this year, of regulations that would compel oil companies to have insurance bonds against environmental pollution, strengthen independent regulation of oil pollution and make enforcement of critical environmental laws and prosecution of polluters and fraudulent cleanups cases of national priority.

More seriously, to complement such measures, in the face of the obvious consequences of oil pollution on health which in some cases result in death, the time has come for oil companies to be charged with murder of the innocent citizens of the Niger delta region who die daily as a result of contaminations from oil exploitation activities.

Toxic effluents
Why should it matter, if murder of a citizen is caused by an assassin’s bullet or by cloud of poisonous gas or some toxic effluents from oil exploitation activities? In adopting the rights based approach that we are here advocating, it seems to me that we need to embrace the liberal interpretation adopted in most other jurisdictions notably, India, where their Supreme Court have for some time recognized that the right to life extends beyond the right to mere existence, and includes an entitlement to the ‘finer graces of human civilization which makes life worth living.’

Since the Universal Declaration of Human Rights in 1948, human rights law has attained a revolutionary path with considerable strides being made especially in the area of state responsibility for human rights abuses by which it is no longer accepted that how a state treats its citizens are matters within its domestic jurisdiction, shut off from intervention by the international community.

One salutary and indeed profound development in international human rights enforcement mechanism has been that when certain human rights violations are considered particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings they are elevated to the status of crimes against humanity.

These are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority.

There being no question as to whether environmental rights are human rights, a point that has to be brought home is that even before we became life in being, susceptible to deprivation, we existed in, and because of, an environment. If that environment is denied, the process leading to our very existence is exhausted.

Environment is therefore, man’s first right and it is on it that the other rights depend. Its violation affects the enjoyment of the other rights and the effect of its violation is omnicidal. Once the environment dies, everything else dies because life itself and all other things that sustain it depend on a safe environment.

It would be safe, therefore, to assert that in the hierarchy of rights, the right to a secure and protected environment is first amongst equals. It is for this reason that we assert that the egregious and pervasive violation of environmental rights in the quest for oil should be elevated to the pedestal and punished as crimes against nature, similar in gravity to crimes against humanity.

Oil pollution and oil exploitation
The ongoing Deepwater Horizon Oil spill in the Gulf of Mexico has shown that even with the best of precautions, oil pollution is inextricable from oil exploitation. But the frantic containment measures and extensive efforts at credible clean-ups irrespective of cause distinguishes the situation there from what obtains here.

Since this year there has been two major oil spills in my village of K. Dere alone, destroying farms and marine life, but as we speak, the rivers, streams and farms are still covered in the oil spills. It is this grave, odious, pervasive if not callous environmental terrorism that should elevate what is happening to our environment to the realm of crimes against nature, and punished as such.

•Mitee, MOSOP president, gave this paper at the 6th All Nigeria Editors Conference in Port Harcourt.

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