environmental law and petroleum exploration and production in afica

8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica

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Environmental Law and PetroleumExploration and Exploitation inAfrican-Africa

Rugemeleza Nshala:

Lawyers Environmental Act ionTeam(LEAT)Dar es Salaam, Tanzania

Presented at Revenue Watch InsituteTraining Whitesands Dar es SalaamTanzania

July 26 2013

[email protected]


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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.


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What is Environmental Law?

Environmental law can be generally definedas the body of law that contains elements tocontrol the human impact on the Earth andon public health.

As for any law, environmental law containsstandards and required conduct on humansthe violation of which attracts a punishmentby the government through fines,imprisonment or compensation.


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Branches of Environmental Law

There is national and international environmentallaw.

National Environmental Law comprises of lawspassed in nation covering different facets of theenvironment including wildlife, water, land, and airquality management, pollution control et cetera.

Countries have passed sectoral legislation and

concretized them by passing frameworkenvironmental legislation as umbrella environmentallegislation which other sectoral legislation mustabide or be in conformity with..


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International Environmental Law

International environmental law is a law

developed between sovereign states todevelop standards at the international level

and provide obligations for states including

regulating their behavior in international

relations in environmental related matters.


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Sources of Environmental Law

Article 38 (1) of the Statute of the International Court of Justiceprovides four sources of International Enviro Law as:

a. international conventions, whether general or particular,establishing rules expressly recognized by the contestingstates;

b. international custom, as evidence of a general practiceaccepted as law;

c. the general principles of law recognized by civilized nations;

d. judicial decisions and the teachings of the most highly qualifiedpublicists of the various nations, as subsidiary means for thedetermination of rules of law.


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National Approaches to Environmental

Management

Constitutions;

Sectoral laws; Framework environmental laws;

Comprehensive codification ofenvironmental laws;

Penal codes; Implementation of international

environmental legal instruments.


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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;


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Principles ctd.

Environmental Impact Assessment (EIA)

Polluter pays;

Cooperation and Common but DifferentiatedResponsibilities;

Precautionary Principle;

Access and Benefit Sharing regarding Natural

Resources; Enactment of Strong Environmental Laws with

attendant Strong and Efficient Enforcing Agencies.


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Environmental Treaties

According to Article 2(1) (a) of the Vienna Convention on theLaw of Treaties a treaty is defined as an internationalagreement concluded between states in written form and

governed by international law, whether embodied in a singleinstrument or in two or more related instruments and whateverits particular designation.

There are more than 500 conventions, treaties, and protocols governingdifferent 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 HazardousWastes and their Disposal: dumping of toxic substances in Ivory Coast in 2005;

The Ramsar Convention on Protection of Wetlands


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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


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International Treaties ctd

United Nations Framework Convention on ClimateChange (UNFCC);

Convention on Biological Diversity The Stockholm Declaration of 1972; and

The Rio Declaration on Environment andDevelopment;

Bamako Convention on the Ban of Imports intoAfrica and the Control of Transboundary Movementand Management of Hazardous Wastes within

Africa.


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Development of Environmental Law

Development of Environmental Law spearheaded by strongindividuals and CSOs. The publication of Silent Spring byRachel Carson in 1962 warned the world of the dangers posedby the use of DDT;

The 1970 Earth Day March galvanized the U.S. Govt intoforming EPA.

The adoption of EIA by courts was a result civil societyorganizations filing of law suits against polluters in US courts;

The banning of lead in gasoline also a result of academics andCSOs efforts;

The passage of Aarhus Convention in Europe also attributed toCSOs efforts


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The Interface between Petroleum and

Environmental Laws

Many African countries have enactedpetroleum exploration and exploitation lawseven where there hasnt been any discoveryof oil.

In participating countries Nigeria has thePetroleum Act of 1969 has amended; Ghana:the Petroleum (Exploration and Production)Law of 1984; Petroleum (Exploration andProduction) Act of 1985


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Governmental Powers on Petroleum

In all these countries petroleum like other

non-renewable resources has been declaredto be state property;

Oil exploration and production are supposed

to be sanctioned by the state; a license is

issued by a respective governmental body orthe minister responsible with Energy or

Petroleum Affairs


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What about Uganda?

In Uganda the Minister issues the license

and attaches the necessary conditions thatthe 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 theconditions including revenue, together with

other rights of the people


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Any environmental requirements?

In Mozambique we find the same but the developer issupposed to observe environmental law and Good Oilfieldpractices.

The Law requires the undertaking of EIA for all oil explorationand exploitation activities in Mozambique;

By contrast the Nigerian Petroleum and the Ugandan laws donot make any mention on environmental requirements save thatthe developer in Uganda the developer is supposed to statemeasures 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 environmentalpollution as a whole


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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 landowner


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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 producingPetroleum


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Ghana ctd

The Minister is empowered to enter into agreement with thedeveloper on oil exploration and exploitation.

There is a danger as the terms might be quite burdensome tothe country as many government officials are not well-versedwith oil production issues and things to guard against.

The Agreements must be ratified by parliament;

But one should know these agreements provide forInternational Arbitration which is costly to poor countries;

The law however allows the renegotiation in case of materialchange of circumstances as they existed at the time of enteringinto it.


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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


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Requirements ctd

Loss of livelihoods;

Water, air or soil contamination; Damage to biodiversity;

Economic distribution including agriculture

production.


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Dispute settlement

Between nationals and foreign companiesthe matter can be solved administratively,

judicially and by mediation;

Between the States and companies for mostpart international arbitration under ICSID,UNCITRAL and ICC

International arbitration should be resisted;national courts must be empowered todecide these cases


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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 environmentalmatters


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Environmental laws

In Uganda: The National EnvironmentalStatute 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 of1988 and also the EIA Act of 1992


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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


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In short

While Petroleum ministries have powers toregulate petroleum affairs in their respective

countries, those powers are subject to theobservance of the rights contained in theConstitutions, other laws like fisheries, land,water and environmental laws.

No oil exploration and exploitation are to takeplace where they are deemed to poseserious or significant environmental damage


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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 orcertain percentage of revenue, employment andother attendant rights;

Law suits against the company and the government; Naming and shaming of companies doing bad

things;

Monitor the oil companies operations


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EIA

Environmental Impact Assessments (EIA)provides a tool that would assist in the

anticipation and minimization ofdevelopments negative effects. Undertakenin the early stages of project planning anddesign, EIA could help shape development in

a manner that best suits the localenvironment and is most responsive tohuman needs.


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Origins of EIA

The passage of the National EnvironmentalPolicy Act (NEPA) by the U.S. Congress

gave the required impetus in dealing withenvironmental pollution from rapidindustrialization, agriculture, populationgrowth and technological growth.

EIA is informed by the fact that naturalresources are finite and must be expended inassiduous manner


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The aims of EIA

EIA is employed to assess the wouldenvironmental social and economic impact of

the proposed project. When carried out toinclude the consequences of the programs,policy and plans it is then becomes aStrategic Impact Assessment (SEA).

EIA also aims at affording the public anopportunity to participate in the projectformulation, assessment and review.


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We can thus say:

EIA aims at:

Integration of environmental issues intoplanning and decision-making;

Anticipation and minimization of

environmental damage; and

Public participation in decision-making and

environmental conservation.


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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 mostfamously Rio Declaration whose principle 17

states:


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Principle 17

Environmental impact assessment, as anational instrument, shall be undertaken for

proposed activities that are likely to have asignificant adverse impact on theenvironment and are subject to a decision ofa competent national authority.

Thus EIA calls for the no-harm approach toyour neighbor or another country as wasemphasized by customary international law.


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EIA steps

Screening to determine whether a certain project should besubject to EIA;

Scoping to decide which impacts should be taken into accountby EIA;

Impact analysis to evaluate the type of likely environmentalimpacts;

Mitigation and impact management to develop measures toavoid, 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;


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EIA Steps Ctd.

Review of EIA quality to examine whether the EIAreport 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 andconditions under which a certain project canproceed; and

Implementation and follow-up to ascertain whetherthe project is proceeding as planned, monitor theeffects of the project, and take actions to mitigateproblems that arise during the course of the project.


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Are EIAs required in participating

countries?

In Uganda, The National Environmental Statute of1995; the Environmental Impact Assessment

Regulations of 1998 and the Environmental ImpactAssessment Public Hearing Guidelines of 1999;

In Nigeria EIA is required. EIA Act of 1992 requiresthe consideration of environmental impacts onprivate and public projects. The mandate also foundsits source from Section 20 of the NigerianConstitution. In short Nigeria has a lot ofenvironmental laws but the problems is onimplementation due to lack of political will andinstitutional weaknesses.


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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 toissue license until its receives EPAs nod

that the EIA demand has been complied with.


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EIA requirements

In Uganda the National EnvironmentalStatute, 1995 demands an EIA for, inter alia,

petroleum exploration. The EIA is to becarried out if the project is likely, may or willhave significant impact on the environment.

The developer is supposed to undertake the

EIA by experts registered by NEMA.

EIA is likewise required in Zambia andMozambique


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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 ordinarymembers of the public;

Project materials are supposed to be availed to thepublic on time so as to ensure that members of thepublic make informed contributions;

Legal rights of members of the public i.e. right toland, property, livelihood, benefit sharing, accessrights, right to adequate, effective and promptcompensation;


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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


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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 toproperty; association, expression; right to

take part in decision-making processes


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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 tohold to account their representatives;


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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 thebeginning to the end and make informed

contributions


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How to protect rights?

Challenge and review EIS to ensure that theenvironmental rights of the people are

respected; Demand to take part in the monitoring of

petroleum exploration and exploitationprocesses;

Bring lawsuits;

Peaceful civil protests


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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 theirgood image so

shaming them is a powerful fighting tool; Hold Govt environmental bodies accountable


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And more importantly

Comprehensive and sustaining community

mobilization and environmental rights

awareness raising campaign.

In short organize,organizeand let me say it

again, ORGANIZE.


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Are Environmental Laws strong

enough?

Laws are strong enough as they do demandthe carrying out of EIA and prohibits the

issuance of the license unless environmentalprotection measures have been put in place.

So?

The most important question is whetherEnvironmental Agencies are strong andindependent enough to enforce these laws?


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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 incapital cities and are unable to reach and monitor

petroleum activities in the entire country


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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 agenciesand oil companies for environmental pollution

or against any exploitation


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What else?

Forge relationships with ParliamentaryEnvironmental Committees to hold to account and

monitor environmental agencies and oil companies; Demand public hearings by the Parliamentary

Environmental Committees on environmental issuesrelating to petroleum activities ;

Demand institutional strengthening andindependence of environmental agencies to ensurethat they assume and perform their tasks as per thelaws;


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What about conflict of laws?

Amendment and harmonization of laws is in order toensure that petroleum laws are in harmony withenvironmental laws;

Laws must state clearly that no license on oilexploitation is to take place contrary toenvironmental laws and that pollution of theenvironment is sufficient ground to end petroleumactivities;

Environmental laws are supposed to supersede anyother laws as far as environmental management isconcerned


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What should be done?

Institutional mandates and rivalries must be ironed out.

Petroleum agencies must be required to abide withenvironmental laws and must liaise and cooperate withenvironmental agencies in petroleum monitoring and auditingprocesses;

Petroleum laws must respect property and citizenry rightsincluding right to fair and adequate compensation;

Thus presidential eminent powers must be sparingly applied

and must in full accord with citizenry constitutional rights


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CSOs role

Good understanding of basic rights and dutiesenshrined in the constitution;

Good understanding of environmental and petroleumlaws;

Environmental and Citizenry Rights AwarenessRaising;

Enforce environmental laws administratively,

politically, and through lawsuits; Monitoring oil companies;

Exposing bad practices and laxities in environmentalmanagement and protection


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What should ctd

Build alliances and networks with other

organizations nationally and internationally


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Best Practices

In Ecuador we have Pablo Fajardo Mendoza

a lawyer who has taken on Chevron against

environmental pollution done by its

predecessor Texaco


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Pablo Mendoza-Goldman

Environmental Award Winner 2007


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Texaco case

According to the plaintiffs, beginning in 1964 and through 1990,Texaco dumped nearly 17 million gallons of crude oil and 20billion gallons of drilling wastewater directly into the Ecuadorian

Amazon. Allegedly suffering from the health effects of thepollution, the region's inhabitants are demanding a completecleanup in potentially the largest environmental lawsuit everfiled in the world. Yanza co-founded the Amazon Defense Frontto organize 30,000 inhabitants of the northern Ecuadorian

Amazon in a class-action lawsuit against Texaco, which wasacquired by Chevron in 2001. The lead lawyer, Pablo Fajardo,a resident of one of the affected communities, has become thepublic voice of the plaintiffs.


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MC MEHTA-INDIA

Mr Mehta is probably the only Supreme Court lawyerto have taken up legal cudgels with the polluting

Indian Industries and come out victorious. Adedicated, fearless and extremely honest man, hepursues his goals with single-minded devotion. Hehas been conferred with several prestigious awards.Some of these are the Governor's Gold Medal, the

Goldman Environmental Prize, considered onalternative Noble Prize in USA and Europe, the UN'sGlobal 500 Award for 1993 and above all theMagsaysay Award for 1997."


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Ken Saro-Wiwa

Who can forget this African hero who laid

down his life for the rights of the Ogoni

people


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Maathai-Wangari-Kenya


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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.


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After All these what else?

ASANTENI SANA&

KWAHERINI

environmental law and petroleum exploration and production in afica

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