Theme: Environment responsibilities of resource companies under host country and home country laws -the growing demand for extraterritorial liability - case studies and options for reform. All protocols duly observed.

Colleagues, Ladies and Gentlemen I am humbled by this great privilege afforded me by the organisers of this session of the 2010 Annual Conference of the International Bar Association – the global voice of the legal profession.I neither claim holistic nor monopolistic knowledge of the issue I am called upon to discuss thus what I will do here is to tease out some of the issues of critical concern to vast majority of deprived local community peoples of Nigeria who bear the brunt of the impact of foreign resource corporations,

look at it on the prism of access to justice and conclude it with proposals before this distinguished audience for review and adoption in setting a global standard that will dissuade resource corporations everywhere they operate in the world no matter how weak, corrupt or absent minded their host governments are, from applying operational double standards or double standards in their business ethics.

Introduction:
Nigeria is a West African country with a population of about 140 million people . It is politically divided into 36  States and a Federal Capital Territory. There are a total of 774 local government areas  that are the closest tier of government structure to the people. Nigeria gained political independence from Britain on October 1st 1960.
Nigeria’s geographic regions are defined by two rivers, river Benue and river Niger. These two major rivers meets at a confluence at Lokoja and jointly empties into the Atlantic Ocean at what is known as the Niger Delta.
The delta is characterized by mangrove forests, lagoons and swamps stretching about 100km inland. The Niger Delta is the largest delta in Africa and covers an area of about 36,000 sq km.
The population of the Niger Delta is estimated to be about 20 million people who are predominantly farmers and fishermen. This population is heading towards extinction through gradual decimation of the people by a well established agents of death no thanks to oil and gas extractive companies operating thereat.

The problem:
The Niger Delta with its natural endowments amongst others is richly blessed with large quantities of oil and gas deposits. The global energy demand which is dependent on oil and gas has made the region the engine room of the Nigerian economy with oil accounting for over 40% of Nigeria’s gross domestic earnings and over 75% of Nigeria’s GDP.
The two major causes of environmental destruction in the region are oil spills and gas flaring which are problems associated with oil and gas industries operating in Nigeria. Some of these negative impacts and the responses to them accounts for the issue of double standards by oil and gas multi-nationals in their operation at their home and host countries.


Oil spills cause debilitating environmental damage, polluting agricultural land and disrupting people’s livelihoods and community life. Oil spills have been known to pollute the environment, destroy crops and aqua lives through the contamination of soils, streams, rivers, estuaries and other water ways including fish ponds where fishes are breed. The consumption of dissolved oxygen by bacteria feeding on the spilled hydrocarbons also contributes to the death of fish. In agricultural communities, often a year's supply of food can be destroyed instantaneously. Because of the careless nature of oil operations in the Delta, the environment is growing increasingly uninhabitable.
Community people resident in these areas complain about health issues including breathing problems and skin lesions; many have lost basic human rights such as health, access to food, clean water, and an ability to work.
The lack of care in the operational activities of the oil industry has exacerbated the plight of the people as was stated by NNPC in its 1983 report thus:
“…We witnessed the slow poisoning of the waters of this country and the destruction of vegetation and agricultural land by oil spills which occur during petroleum operations. But since the inception of the oil industry in Nigeria, more than twenty-five years ago, there has been no concerned and effective effort on the part of the government, let alone the oil operators, to control environmental problems associated with the industry” this position is still apt today.
Gas is often found mixed with crude oil and must be separated. Burning the gas, known as gas flaring, is the cheapest way to do this, yet also the most environmentally destructive. It acidifies lakes and streams and damages crops and vegetation. It also increases the risk of respiratory illnesses, asthma and cancer, and can cause painful breathing, itching, blindness, impotency, miscarriages and premature deaths. It also has global impacts: gas flaring is a major cause of climate change.

It is also a waste of a valuable resource. While nearly three-quarters of Nigerians live in extreme poverty, Nigeria loses US$2.5 billion every year through flared gas. 
Despite the dangers posed by gas flaring to the lives and livelihoods of the people, the environment both local and globally as well as waste of vital revenue , oil companies operating in Nigeria still engage in the obnoxious practices with the government not batting an eyelid. If the above is not compelling enough, one wonders the reasons behind the continued flaring of gas in the Niger Delta, even after the practice had been made illegal in Nigeria since 1984  and further declared illegal, null and void for violating the constitutional rights to life and dignity of the human person.  The Nigerian government has also failed to enforce its ban on gas flaring. 

Gas flaring in Nigeria is the most significant contributor to climate change in sub-Saharan Africa, as more gas is flared in Nigeria than anywhere else in the world. The gas industry statistics publisher, Cedigaz, indicates that Nigeria accounted for 19.79% of global flaring in 2001, more than the second (Iran) and third (Indonesia) countries combined .
Gas flaring releases large amounts of methane, which has a high global warming potential. The methane is accompanied by the other major greenhouse gasses, carbon dioxide, of which Nigeria was estimated to have emitted more than 3,438 metric tons in 2002, accounting for about 50% of all industrial emissions in the country and 30% of the total CO2 emissions. While flaring in the west has been minimized, in Nigeria it has grown proportionally with oil production.
Gas flaring if not for anything should be discouraged as it releases toxic components into the atmosphere and contributes to climate change. It is not a hidden fact that in the developed countries where oil extraction is equally taking place, there has zero gas flaring as more than 99% of associated gas is used or re-injected into the ground. Gas flaring in Nigeria began simultaneously with oil extraction in the 1960s by Shell-BP. Alternatives to flaring are gas re-injection, or to store it for use as an energy source. If properly stored, the gas could also be utilized for community projects. Despite knowledge of the above, the oil corporations because of greedy and insatiable quest for profit above human lives in developing countries prefer to waste this precious income earner because of costs of building facilities.
Despite concerted efforts at combating the environmental and social problems created by the activities of transnational oil and gas corporations in Nigeria’s Niger Delta, corporations continue to operate in a manner that falls far short of globally accepted best practices.

I will therefore sum up the discuss on the major problems in the words of late Ken Saro Wiwa the martyr of the struggle for environmental justice in Nigeria  in July 1992, when he addressed the United Nations Working Group on Indigenous Peoples in Geneva thus "I speak on behalf of the Ogoni people. You will forgive me if I am somewhat emotional about this matter. I am Ogoni … Petroleum was discovered in Ogoni in 1958 and since then an estimated 100 billion dollars worth of oil and gas has been carted away from Ogoniland. In return for this the Ogoni people have received nothing."
In this vein, learned colleagues, please forgive me if I have bored you with these lengthy details about the problems created for my people of Nigeria in general and Niger Delta in particular. I have been to several spill and gas flare sites across the Niger Delta, I have suffered arrest and detention by Shell in their location for daring to lead journalists and environmentalists to expose the continued flaring of gas by Shell despite a court judgment against such act against them. I have seen the despair and despondency on the faces of these community people, I have seen poverty in the midst of abundance natural resources. People used to seeing wealth carted off their feet while the only impact of such wealth bestowed on their land by the Almighty God are the pains and destructions emanating from the operations oil and gas corporations mostly out of oil spills and gas flaring.

Access To Justice.
Having presented the problems as identified, the next issue for consideration will be how remedies are sought and obtained against these multi-nationals whose activities either by omission or commission violates the rights of citizens in varying degrees and ways. The ways, means or mechanisms through which citizens seek and obtains remedies for violations of their rights be they tangible or intangible rights constitutes how open or closed their access to justice is. For me access to justice does not only lie in the unfettered access to the courts of law where justice is primarily to be dispensed to an aggrieved party but everything that will make that process affordable and open to all citizens irrespective of background. Access to justice will mean that one is not in any way deprived of the fruits of his/her endeavours by anyone no matter how highly or lowly placed. In this wise, it means that the three tiers of government in the Nigerian situation the executive, the legislature and the judiciary must be alive to their responsibilities in ensuring that citizens enjoy unfettered  access to justice especially though not limited to issues of environmental impacts of resource corporations.


Barriers to access to justice :
While looking at the issue of barriers to access to justice in the Nigerian context, I will address it in three key contexts of Legal, Economic and Attitudinal barriers.

Legal barrier: The main legal barrier preventing affected individuals and communities from enjoying full and unhindered access to justice for environmental/livelihoods and human rights violations especially in course of operational activities of extractive industries mainly from the oil and gas sector is the constitution of the Federal Republic of Nigeria 1999 – a document of military origin.
In saying this, I will refer to specific sections of the constitution as a pointer thus: Section 20 which provides for the environmental principles is under chapter 2 of the constitution which is not judicially enforceable.  Section 251(1)(e) and (n) grants exclusive jurisdiction to the Federal High Court – an elitist court that resides in the States capitals where they exist – to entertain matters arising from operations of companies incorporated under the Companies and Allied Matters Act and matters relating to Mines and Minerals (including oil fields, oil mining, geological surveys and natural gas) among others. Section 315(1)(a) and (5)(d) which has transformed the Land Use Decree – a military document – to an Act of Parliament and saved it. These provisions inhibit individuals and communities from accessing justice.

To properly posit issues and situations, it is noteworthy to inform that the gravest violators of the environmental, livelihoods and human rights of Nigerian citizens in this context are extractive industries operators who in their operational activities/practices destroy and pollutes the peoples environment, source of livelihood, create health problems and when they raise questions, military might brought in to intimidate and coerce them into submission.

When this happens, the individuals and communities are faced with the high cost pursuing judicial redress from the Federal High Courts. Even where such individuals or communities are able to secure judgments in their favour, because these matters falls within the exclusive legislative lists of the constitution, the only enforcement institutions are Federal institutions which are in most cases out of touch with the realities in the local communities. Enforcement of such judgments becomes a herculean task. In such situations, the vulnerable communities and individuals are forced to either renegotiate the judgment conditions or have a judgment but with no remedy.

Economic barrier: There is no way a discuss on the issue of barriers to access to justice will be concluded without taking a cursory look into the economic situation of the people that are seeking for justice. In developing and undeveloped countries, the cost of obtaining justice are usually very high. The Nigerian situation is not different. With the poverty index level of the average community people who bear the brunt of the carnage meted out to the environment, their source of livelihoods and at other occasions violations of their fundamental human rights after all environmental rights had been adjudged to amount to fundamental human rights  it becomes a herculean task resting remedies out of the hands of the multi-national oil giants who has all the resources available to them to do all manner of things except rating and ranking their hosts as human beings and above profit. Counterbalancing the super rich position of the oil corporations and poor state of the community people with the corruption rates in high and low places in most developing countries, one does not need to research much to come to the empirical conclusion that access to justice has a huge barrier built around it by the economic powers of the different actors. Of course the poverty level of the community people leads to their inability to meet with the high cost of litigation.

Attitudinal barrier: As one that has been representing vulnerable groups and communities, some of the other critical barriers they face everyday in seeking access to judicial remedy includes the complicity of state actors and companies, lack of access to information – Nigeria not having the Freedom of Information Law and the patience with snail speed of litigation among others.

The end gas flare case  presents a good scenario in that despite the fact that gas flaring does not only pollute the environment, create health problems for Nigerian citizens, it equally robs the government of revenue and has been declared illegal for violating citizens constitutional rights to life and dignity of the human person by a court of competent jurisdiction, the Federal government of Nigeria is still negotiating with corporations on a terminal date for this illegal and harmful practice while Shell is behaving as if there has been no such decision , it continues to flare gas in the Iwherekan community!

Corporations pick and choose which decisions of Nigerian courts to obey and otherwise with the Federal Government and her agencies looking the other way.

Still on attitude is the issue of creativity of lawyers. Most lawyers are not very creative sticking to the conventional legal methodologies without any strive to leave their comfort zones no wonder lawyers are branded conservatives!

I know distinguished colleagues that most of you seated in this conference are not in anyway to be qualified as above as you are very innovative and creative. Environmental rights litigation will never survive on the platform of conventional litigation as all manner of ouster provisions of the law will be invoked by the violators to escape liability for their atrocities. This being the case, we must call to be the unconventional methods in seeking redress on behalf of our clients – this is the only way we can expand the frontiers of the law and create more room for the enjoyment of access to justice by the vulnerable and disadvantaged members of our societies. We had done it before. The case of Jonah Gbemre Vs. Shell shows how creative legal minds can make the law the real instrument for social reengineering!

In concluding this segment of the discussion, I will state that it is obvious that in my analysis on attitudes, I did not discuss the attitude of the courts, this is because in recent times, the courts in Nigeria have exhibited high level of courage and proactiveness in the discharge of their duties of dispensing justice!

Proposal for a global mechanism for access to remedies by citizens of host countries against corporations in their home countries for violations of their rights.
Before making my proposal let me pause a while and address one of the frequently asked questions to me which is: why are you seeking legal redress for violation of rights that occurred in Nigeria abroad? My answer to this kind of question is always straight forward. I have lots of confidence in the Nigerian judiciary and judicial system to deliver sound judgments in disputes irrespective of who the disputants are. Despite this however, access to justice is not only premised on getting a sound favourable judgment but equally the enforcement of the judgment so obtained. This is the distinction between law and history for instance. The law must be respected and obeyed but in this clime, the corporations are above the law, they pick and choose which laws and court decisions to obey and the ones not to comply with! Examples abound . Because these corporations respect and abide by their home country laws and when they neglect, refuse or fail to obey, the state has compelling apparatus to ensure enforcement of compliance, that is why we approach them for redress.
It is on the above, that the Environmental Rights Action/Friends of the Earth Nigeria and her sister organisation Milieudefensie/Friends of the Earth Netherlands is giving support to some Niger Delta communities to institute legal actions against Shell in the Hague, Netherlands  for her environmental atrocities in their communities and seeking to establish parent company liability over the actions and inactions of their daughter companies in their host countries irrespective of how weak or strong the government and people of these countries are.

Proposal:
In order not to sound repetitive, I have had the privilege of reading in advance the draft reform proposal made by Assistant Professor Sara L. Seck of the Faculty of Law, University of Western Ontario which will be circulated at this conference and I agree with her to a very large extent. The only point I will suggest we reconsider is the three different implementation approaches to adjudication and enforcement. I will suggest that we propose in addition to the ones already prepared by Sara Seck that:
1.    The United Nations should propose a treaty compelling member states to ensure that companies of their state origin upholds the same standards they apply in their home states every where they operate or do business, abide and uphold the laws and judicial decisions of their host countries and where they are unable to do this, grant express access and financial assistance to vulnerable and weak communities and groups of people to seek judicial redress in the parent companies home state especially when the issue in contention relates to the violation of human rights.
2.    The United Nations should use their instruments and organs to set up Environmental Tribunals to try such environmental devastations that could be classified as environmental genocide for which home states may be able or willing to contend with.
3.    Regional blocks and home countries should enact laws or codes that will make it mandatory for corporations of their state origin to behave the same way they behave in their home countries every where they find themselves.
4.    Where such laws or codes are breached, citizens of the host countries have unfettered access to the home courts or other adjudicatory panels or tribunals.
5.    In order to qualify for such an unfettered access, the complainant must liaise with an interest group in the home country be it a law firm or an NGO or a corporate body who will be a party to the suit also.
6.    When the above is satisfied, the home country government shall provide legal and financial support to the complainants provided that such support will cease once no sustainable cause of action has been established.

The above will ensure that the question of jurisdiction and locus are dispensed with. It will make the corporations and companies stop taking advantage of the weaknesses of the governments and people of their host countries in not upholding the same standards as they apply in their home countries. They will refrain from applying double standards as that leads to unfavourable situations both for the companies, the government and people of their host countries as is experienced with the recent crises in the Niger Delta region of Nigeria. Corporations should uphold their organisational ethical principles and stop hiding under the guise of the weaknesses of the operators of their host countries to violate their own set goals and standard.

Thank you.


References
Prince Chima Williams is a Nigerian lawyer and Head, Legal Resources Department, Environmental Rights Action/Friends of the Earth Nigeria. He is coordinating Nigerian plaintiffs in Netherlands litigation by four Nigerian farmers and fishers, claiming as victims of Shell oil leaks. He actively campaigns nationally and internationally for globally enforceable environmental standards by all business operators to ensure respect for the environmental and human rights of local community people.

As estimated by the 2006 Nigerian census results as released. Vanguard 30th December, 2006.

Section 3 (1) of the 1999 Constitution of the Federal Republic of Nigeria.

Section 3 (6) of the 1999 Constitution of the Federal Republic of Nigeria.

This is one of the spill cases by four Nigerian Farmers against Shell in the Hague, Netherlands.

Baird J (July 26, 2010). "Oil's Shame in Africa". Newsweek: 27.

This is one of the spill cases by four Nigerian Farmers against Shell in the Hague, Netherlands.

Gas flaring in Nigeria: A human rights, environmental and economic monstrosity. by Environmental Rights Action/Friends of the Earth Nigeria and Climate Justice Programme Uk. June, 2005.

Global gas flaring reduction partnership, World Bank, December, 2006

“Nigeria looses $150 bn to gas flare in 36 years, 1970 - 2006”, Vanguard, July 14th 2008.

Section 3 of Nigeria’s Associated Gas Reinjection Act, 1979.

Judgment of the Federal High Court, Benin City in Suit No. FHC/B/CS/53/05: Jonah Gbemre Vs. Shell Petroleum Development Company  Nigeria Ltd. & 2 ors delivered on the 14th November, 2005.

There has been so much double speak by the relevant actors including the Nigerian government on the issue of ending gas flaring in the country. Even after the judgment of November 24th, 2005 which outlawed  gas flaring, the Nigerian government, the legislators and the oil multi-nationals has been incoherent on the terminal date for gas flaring. The Federal government shifted the dates from December 31st, 2007 to December 31st, 2008 and latter to December, 2011. The House of Representatives 2012 and the Oil Multi-nationals 2013. The only organ that came close to being serious about the terminal date is the Senate of the Federal Republic of Nigeria who through the Gas Flaring Prohibition and Punishment Bill 2009 set the deadline for 31st December, 2010. This date is already doomed as all the effort put in making that Bill comes to naught without a corresponding version of the Bill by the House of Representatives for harmonisation before presentation to the President for assent. The House of Representatives who have set 2012 date will  definitely do nothing now. At the end of the day even the 2013 date set by the oil majors may still not be achieved except with lots of concerted efforts and push from all and sundary.

see Statistical Leaflet available here: www.cedigaz.org.

Gas flaring in Nigeria: A human rights, environmental and economic monstrosity. by Environmental Rights Action/Friends of the Earth Nigeria and Climate Justice Programme Uk. June, 2005.