Environmental Law and Petroleum Exploration and Exploitation in African-Africa

Rugemeleza Nshala: Lawyers Environmental Action Team(LEAT) Dar es Salaam, Tanzania Presented at Revenue Watch Insitute Training Whitesands Dar es Salaam Tanzania July 26 2013 rugemeleza@gmail.com

What is Environment?

Environment in the modern context of sustainable development encompasses the physical and social factors of the surroundings of human beings and includes land, water, atmosphere, climate, sound, odour, taste, energy, waste management, coastal and marine pollution, the biological factors of animals and plants, as well as cultural values, historical sites, and monuments and aesthetics.

What is Environmental Law?

Environmental law can be generally defined as the body of law that contains elements to control the human impact on the Earth and on public health. As for any law, environmental law contains standards and required conduct on humans the violation of which attracts a punishment by the government through fines, imprisonment or compensation.

Branches of Environmental Law

There is national and international environmental law. National Environmental Law comprises of laws passed in nation covering different facets of the environment including wildlife, water, land, and air quality management, pollution control et cetera. Countries have passed sectoral legislation and concretized them by passing framework environmental legislation as umbrella environmental legislation which other sectoral legislation must abide or be in conformity with..

International Environmental Law

International environmental law is a law developed between sovereign states to develop standards at the international level and provide obligations for states including regulating their behavior in international relations in environmental related matters.

Sources of Environmental Law

Article 38 (1) of the Statute of the International Court of Justice provides four sources of International Enviro Law as: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

National Approaches to Environmental Management

Constitutions; Sectoral laws; Framework environmental laws; Comprehensive codification of environmental laws; Penal codes; Implementation of international environmental legal instruments.

Environmental Management Principles informing Environmental Law

There many environmental management principles but most important ones are: Sustainable development; thus developmental initiatives must be informed by environmental consideration; Inter- generational and intra-generational equity; Transparency, Public participation and Access to Information; Responsibility for Trans-boundary harm;

Principles ctd.

Environmental Impact Assessment (EIA) Polluter pays; Cooperation and Common but Differentiated Responsibilities; Precautionary Principle; Access and Benefit Sharing regarding Natural Resources; Enactment of Strong Environmental Laws with attendant Strong and Efficient Enforcing Agencies.

Environmental Treaties

According to Article 2(1) (a) of the Vienna Convention on the Law of Treaties a treaty is defined as an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.
There are more than 500 conventions, treaties, and protocols governing different facets of the environment. A few are mentioned here i.e. The Convention on Trade on Endangered Species of Wild Flora and Fauna (CITES) passed in 1973 one year After Stockholm Conference; The United Nations Convention on the Law of the Sea (UNCLOS) of 1982; The Basel Convention on Control of Transboundary Movement of Hazardous Wastes and their Disposal: dumping of toxic substances in Ivory Coast in 2005; The Ramsar Convention on Protection of Wetlands

Treaties ctd

The Convention on Trade on Endangered Species of Wild Flora and Fauna (CITES) passed in 1973 one year After Stockholm Conference; The United Nations Convention on the Law of the Sea (UNCLOS) of 1982; The Basel Convention on Control of Transboundary Movement of Hazardous Wastes and their Disposal: dumping of toxic substances in Ivory Coast in 2005; The Ramsar Convention on Protection of Wetlands

International Treaties ctd

United Nations Framework Convention on Climate Change (UNFCC); Convention on Biological Diversity The Stockholm Declaration of 1972; and The Rio Declaration on Environment and Development; Bamako Convention on the Ban of Imports into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa.

Development of Environmental Law

Development of Environmental Law spearheaded by strong individuals and CSOs. The publication of Silent Spring by Rachel Carson in 1962 warned the world of the dangers posed by the use of DDT; The 1970 Earth Day March galvanized the U.S. Govt into forming EPA. The adoption of EIA by courts was a result civil society organizations filing of law suits against polluters in US courts; The banning of lead in gasoline also a result of academics and CSOs efforts; The passage of Aarhus Convention in Europe also attributed to CSOs efforts

The Interface between Petroleum and Environmental Laws

Many African countries have enacted petroleum exploration and exploitation laws even where there hasnt been any discovery of oil. In participating countries Nigeria has the Petroleum Act of 1969 has amended; Ghana: the Petroleum (Exploration and Production) Law of 1984; Petroleum (Exploration and Production) Act of 1985

Governmental Powers on Petroleum

In all these countries petroleum like other non-renewable resources has been declared to be state property; Oil exploration and production are supposed to be sanctioned by the state; a license is issued by a respective governmental body or the minister responsible with Energy or Petroleum Affairs

What about Uganda?

In Uganda the Minister issues the license and attaches the necessary conditions that the developer is supposed to observe. There is a catch though: The Minister may enter into an agreement with the developer and this may whittle down some of the conditions including revenue, together with other rights of the people

Any environmental requirements?

In Mozambique we find the same but the developer is supposed to observe environmental law and Good Oilfield practices. The Law requires the undertaking of EIA for all oil exploration and exploitation activities in Mozambique; By contrast the Nigerian Petroleum and the Ugandan laws do not make any mention on environmental requirements save that the developer in Uganda the developer is supposed to state measures he or she is going to undertake to protect the environment. In Nigeria the Minister is empowered to make regulations on water and atmospheric pollution: note not environmental pollution as a whole

What about Ghana?

In Ghana petroleum exploration and exploitation is supposed to adhere to best international practices; The Petroleum Exploration and Production Law 1984 requires compensation to the owner of land for the disturbance and damage caused due to oil related activities but compensation results out of the negotiations between the company and the land owner

Petroleum licenses

Upon grant of a license the grantee is supposed to observe the conditions attached to the license including: Good Oilfield Practice Good Oilfield Practices: all those practices that are generally accepted in the international Petroleum industry as good, safe, environmentally friendly, economic and efficient in exploring for and producing Petroleum

Ghana ctd

The Minister is empowered to enter into agreement with the developer on oil exploration and exploitation. There is a danger as the terms might be quite burdensome to the country as many government officials are not well-versed with oil production issues and things to guard against. The Agreements must be ratified by parliament; But one should know these agreements provide for International Arbitration which is costly to poor countries; The law however allows the renegotiation in case of material change of circumstances as they existed at the time of entering into it.

Environmental requirements

Access rights of the land occupiers like water and grazing must be respected; EIA required but at the discretion of the Minister; But the Minister must impose environmental protection requirements as part of the license; The law demands for the creation of Petroleum Environmental Protection Fund Environmental damage must be removed by reinstatement, rehabilitation and clean-up measures

Requirements ctd

Loss of livelihoods; Water, air or soil contamination; Damage to biodiversity; Economic distribution including agriculture production.

Dispute settlement

Between nationals and foreign companies the matter can be solved administratively, judicially and by mediation; Between the States and companies for most part international arbitration under ICSID, UNCITRAL and ICC International arbitration should be resisted; national courts must be empowered to decide these cases

Are Petroleum agencies powers absolute?

Not at all. As far as environmental matters are concerned any permit issued to oil companies/developer an EIA certificate is a must. Section 20 of the Nigerian Constitution demands assiduous utilization of the natural resources. These countries have enacted framework environmental legislation that govern environmental matters

Environmental laws

In Uganda: The National Environmental Statute of 1995 Mozambique: Environmental Act of 1997 Ghana: The EPA Act of 1994 Nigeria many laws are in place including: The Federal Environmental Protection Act of 1988 and also the EIA Act of 1992

Likewise

These powers are subject to constitutional rights like the right to property, livelihood Due process i.e. the right to be heard and defend oneself; Adequate, effective and prompt compensation

In short

While Petroleum ministries have powers to regulate petroleum affairs in their respective countries, those powers are subject to the observance of the rights contained in the Constitutions, other laws like fisheries, land, water and environmental laws. No oil exploration and exploitation are to take place where they are deemed to pose serious or significant environmental damage

Rights of Members of the Public

Take part in the EIA Process; Right to demand compensation for loss of livelihoods, land, fishing rights Demand benefit sharing provisions in the agreements including shares in the company or certain percentage of revenue, employment and other attendant rights; Law suits against the company and the government; Naming and shaming of companies doing bad things; Monitor the oil companies operations

EIA

Environmental Impact Assessments (EIA) provides a tool that would assist in the anticipation and minimization of developments negative effects. Undertaken in the early stages of project planning and design, EIA could help shape development in a manner that best suits the local environment and is most responsive to human needs.

Origins of EIA

The passage of the National Environmental Policy Act (NEPA) by the U.S. Congress gave the required impetus in dealing with environmental pollution from rapid industrialization, agriculture, population growth and technological growth. EIA is informed by the fact that natural resources are finite and must be expended in assiduous manner

The aims of EIA

EIA is employed to assess the would environmental social and economic impact of the proposed project. When carried out to include the consequences of the programs, policy and plans it is then becomes a Strategic Impact Assessment (SEA). EIA also aims at affording the public an opportunity to participate in the project formulation, assessment and review.

We can thus say:

EIA aims at: Integration of environmental issues into planning and decision-making; Anticipation and minimization of environmental damage; and Public participation in decision-making and environmental conservation.

Acceptance of the EIA

Many Conventions and Treaties now recognize and call for the performance of EIAs on all projects with significant environmental impact They include the Convention of Biological Diversity of 1992; UNCLOS and most famously Rio Declaration whose principle 17 states:

Principle 17
Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority. Thus EIA calls for the no-harm approach to your neighbor or another country as was emphasized by customary international law.

EIA steps

Screening to determine whether a certain project should be subject to EIA; Scoping to decide which impacts should be taken into account by EIA; Impact analysis to evaluate the type of likely environmental impacts; Mitigation and impact management to develop measures to avoid, reduce or compensate for negative environmental effects; Reporting to catalogue and track the results of EIA for decision makers and other interested parties, including the public;

EIA Steps Ctd.

Review of EIA quality to examine whether the EIA report includes all of the information required by decision makers and the public; Decision making to approve or reject project proposals and, if needed, to set the terms and conditions under which a certain project can proceed; and Implementation and follow-up to ascertain whether the project is proceeding as planned, monitor the effects of the project, and take actions to mitigate problems that arise during the course of the project.

Are EIAs required in participating countries?

In Uganda, The National Environmental Statute of 1995; the Environmental Impact Assessment Regulations of 1998 and the Environmental Impact Assessment Public Hearing Guidelines of 1999; In Nigeria EIA is required. EIA Act of 1992 requires the consideration of environmental impacts on private and public projects. The mandate also founds its source from Section 20 of the Nigerian Constitution. In short Nigeria has a lot of environmental laws but the problems is on implementation due to lack of political will and institutional weaknesses.

EIA required

In Ghana the Environmental Protection Act of 1994 empowered the EPA to demand an EIA for any activity which has adverse environmental impacts. When an EIA has been demanded the responsible governmental agency is not supposed to issue license until its receives EPAs nod that the EIA demand has been complied with.

EIA requirements

In Uganda the National Environmental Statute, 1995 demands an EIA for, inter alia, petroleum exploration. The EIA is to be carried out if the project is likely, may or will have significant impact on the environment. The developer is supposed to undertake the EIA by experts registered by NEMA. EIA is likewise required in Zambia and Mozambique

Things that must be observed in the EIA process

Public participation in the entire process; The project materials are supposed to be in a language that is easily understood by ordinary members of the public; Project materials are supposed to be availed to the public on time so as to ensure that members of the public make informed contributions; Legal rights of members of the public i.e. right to land, property, livelihood, benefit sharing, access rights, right to adequate, effective and prompt compensation;

Things to monitor ctd

Incorporation and consideration of the members of the public views in the EIS; The Review process: Is the Environmental Agency independent and competent enough to review the EIS and make an informed decision? Right to challenge the EIS administratively and legally; Monitoring mechanisms arising out of EMP; Rehabilitation bond and measures

Tools for Environmental Law Enforcement in the Petroleum industry

What are citizens rights in Petroleum exploiting countries? Citizens enjoy all basic rights enshrined in the constitutions like the Bill of Rights e.g. equality before the law, right to life, right to clean and healthy environment; right to property; association, expression; right to take part in decision-making processes

Rights ctd

Right to employment, access to justice, among others They are supposed to live in a country governed by the rule of law and with independent judiciary; They have right to representation and right to hold to account their representatives;

How to protect these rights be protected?

Take part in all environmental making decision-processes; Demand access to documents pertaining to petroleum exploration and exploitation application processes; Take part in EIA processes from the beginning to the end and make informed contributions

How to protect rights?

Challenge and review EIS to ensure that the environmental rights of the people are respected; Demand to take part in the monitoring of petroleum exploration and exploitation processes; Bring lawsuits; Peaceful civil protests

What should

Expose bad practices of foreign oil companies nationally and internationally Remember Petroleum companies purport to attach much value to their name and brands in order to protect their good image so shaming them is a powerful fighting tool; Hold Govt environmental bodies accountable

And more importantly

Comprehensive and sustaining community mobilization and environmental rights awareness raising campaign. In short organize, organize and let me say it again, ORGANIZE.

Are Environmental Laws strong enough?

Laws are strong enough as they do demand the carrying out of EIA and prohibits the issuance of the license unless environmental protection measures have been put in place. The most important question is whether Environmental Agencies are strong and independent enough to enforce these laws?

So?

The Answer is

Most of environmental agencies are very weak, lack the required independence and lack staff and resources to enforce these laws. They are easy to manipulate and see themselves as governmental bodies required to give effect to government wishes; The have countrys mandate yet they are based in capital cities and are unable to reach and monitor petroleum activities in the entire country

So what should we do?

Civil Society involvement in enforcement of environmental laws and rights is key. CSOs must step in to demand accountability and monitor enviro agencies and oil companies activities; Must bring lawsuits against enviro agencies and oil companies for environmental pollution or against any exploitation

What else?

Forge relationships with Parliamentary Environmental Committees to hold to account and monitor environmental agencies and oil companies; Demand public hearings by the Parliamentary Environmental Committees on environmental issues relating to petroleum activities ; Demand institutional strengthening and independence of environmental agencies to ensure that they assume and perform their tasks as per the laws;

What about conflict of laws?

Amendment and harmonization of laws is in order to ensure that petroleum laws are in harmony with environmental laws; Laws must state clearly that no license on oil exploitation is to take place contrary to environmental laws and that pollution of the environment is sufficient ground to end petroleum activities; Environmental laws are supposed to supersede any other laws as far as environmental management is concerned

What should be done?

Institutional mandates and rivalries must be ironed out. Petroleum agencies must be required to abide with environmental laws and must liaise and cooperate with environmental agencies in petroleum monitoring and auditing processes; Petroleum laws must respect property and citizenry rights including right to fair and adequate compensation; Thus presidential eminent powers must be sparingly applied and must in full accord with citizenry constitutional rights

CSOs role

Good understanding of basic rights and duties enshrined in the constitution; Good understanding of environmental and petroleum laws; Environmental and Citizenry Rights Awareness Raising; Enforce environmental laws administratively, politically, and through lawsuits; Monitoring oil companies; Exposing bad practices and laxities in environmental management and protection

What should ctd

Build alliances and networks with other organizations nationally and internationally

Best Practices

In Ecuador we have Pablo Fajardo Mendoza a lawyer who has taken on Chevron against environmental pollution done by its predecessor Texaco

Pablo Mendoza-Goldman Environmental Award Winner 2007

Texaco case

According to the plaintiffs, beginning in 1964 and through 1990, Texaco dumped nearly 17 million gallons of crude oil and 20 billion gallons of drilling wastewater directly into the Ecuadorian Amazon. Allegedly suffering from the health effects of the pollution, the region's inhabitants are demanding a complete cleanup in potentially the largest environmental lawsuit ever filed in the world. Yanza co-founded the Amazon Defense Front to organize 30,000 inhabitants of the northern Ecuadorian Amazon in a class-action lawsuit against Texaco, which was acquired by Chevron in 2001. The lead lawyer, Pablo Fajardo, a resident of one of the affected communities, has become the public voice of the plaintiffs.

MC MEHTA-INDIA

Mr Mehta is probably the only Supreme Court lawyer to have taken up legal cudgels with the polluting Indian Industries and come out victorious. A dedicated, fearless and extremely honest man, he pursues his goals with single-minded devotion. He has been conferred with several prestigious awards. Some of these are the Governor's Gold Medal, the Goldman Environmental Prize, considered on alternative Noble Prize in USA and Europe, the UN's Global 500 Award for 1993 and above all the Magsaysay Award for 1997."

Ken Saro-Wiwa

Who can forget this African hero who laid down his life for the rights of the Ogoni people

Maathai-Wangari-Kenya

What About you?

You are the hero if you so choose to make a real difference and tap into your talents; Or you may retreat into safe corners of cowardice and hypocrisy. The choice is yours but for sure you will one day have to account.

After All these what else?

ASANTENI SANA & KWAHERINI