Thursday, 6 September 2012

News Release: The Latent Evils Of Petroleum Industry Bill(P.I.B)2012

diezani-allison-madueke; Petroleum Resources Minister

On face value or what we lawyers call prima facie, the celebrated Petroleum Industry Bill 2012 seems excellent with all the hype of transformational development and Industrial  Revolution that goes with it, but on a strenuous and exhaustible look with a microscope, we have discovered the existing but hidden evil intent (mensrea) of the P. I. B 2012.

The push for this fact-finding mission started in a conference the Institute Of Human Rights And Humanitarian Laws(IHRHL) attended at Bolingo Hotel Abuja on the “Appraisal Of The Petroleum Industry Bill”, organized by ERA/Friends of the Earth Nigeria and UNDP.

A comprehensive review of the P. I. B 2012 was carried out by the participants, led by Nurudeen Ogbara Esq. and Nnimo Bassey.

The sessions were thought provoking and enlightening.

To keep the fire burning IHRHL left Abuja with a resolve to look into the said Bill and form an unbiased opinion.

This write-up is a product of that digging.

The First discovery is that the P. I. B is a  gross  departure from International Treaties on Human and Environmental Rights which Nigeria is signatory to. Some of the Environment Related international Conventions and Protocols signed and ratified by Nigeria are:-

1. African Convention on the Conservation of Nature and Natural Resources (1968).

2. International Convention for the Pollution of the Sea by Oil (1954 -62).

3. The Convention concerning the protection of the World Culture and Natural Heritage (1972).

4. Convention on International Trade in Endangered species of Flora and Fuana (1973).

5. United Nations Declaration Of Human Rights.

One may ask, what is the nexus between Environmental Rights and Human Rights and P. I. B,? please be patient with us as we flow.

The preamble to the Universal Environmental Rights states thus:-

“Whereas the 1948 recognition of the inherent dignity, equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

Whereas in 2009, recognition that the world has changed dramatically in ways not imagined, such that catastrophic climate change threatens the very rights declared in 1948, we recognize that human rights now depend on protecting our environment for the welfare of all living now and in the future and that freedom to live in harmony with our environment is the basis for all other human rights necessary to enjoy life, health freedom, justice and peace”.

Thus it is essential, if humans, particularly Nigerians must not be compelled to suffer effects of incessant oil spillage, human and environmental degradation which translates to destruction of means of livelihood, poverty, ill-health, death (breach of right to life and human dignity); Environmental rights should be jealously and zealously protected by rule of law.

The P. I. B woefully failed to protect these rights and it is this same industry that has violently invaded our ecosystem and made part of it utterly useless. Goi Community in Ogoni land is a case study. The land has become barren due to degradation by SHELL’s spillage to the extent that it is inhabitable, and unproductive. The people have become refugees in their own country with no place to go, their means of existence crippled. They can’t farm or fish. They are poverty stricken, the air is poisonous, the water is death syrup with benzene level 900 times above prescribed medical standard.

With all these challenges in view, the least expected of P. I. B is that it protects the environment and by extension, Human Right to life and dignity (of labour).
The objective of the P. I. B buttresses my point as it is geared towards profiting the Federal Government and the Oil Companies to create a “business environment for further exploitation”

“Part V11 P.I.B”:
On Health, Safety and Environment is relaxed on compensation and penalties. It is not preventive as to compel the Oil Companies maintain International Oil field practices.

The sanction as stated in Sections 298 & 296 is as prescribed by the inspectorate and the Agency in consultation with the Minister of Petroleum.

As such whatever the Minister decides as adequate compensation or penalty, so be it. The guideline as to compensation should have been stated clearly and penalty too as obtainable in other reasonable laws, subject to judicial interpretation.

Our further take is that too much autocratic powers have been reposed on the Minister by the P. I. B without check and balance.

This brings us to IHRHL’s Second discovery that the P. I. B lacks checks and balance mechanism. The Nigerian Oil and Gas Content Act attempted to achieve the check and balance mechanism when it created the Nigerian Oil and Gas Monitoring Board to monitor the implementation of its laudable provisions.

Our suggestion is that instead of reposing all that power on the Minister as it is in the P. I. B, an Independent Board be created, funded independently, to check the excesses of the Oil Companies in the Upstream, Midstream and Downstream sector and the apparent corruption in the Ministry.

It is obvious that the Ministry is also an interested party and cannot be a judge in its own case. The Ministry cannot check itself but would rather fashion policies that would shield her. She needs to be put on her toes, if not even with this laudable P. I. B, it will be business as usual if the Minister calls all the shots.

NOSDRA and Ministry of Environment should be further empowered to check the excesses of investors in the upstream sector who use low standard equipment for exploitation or do not regularly maintain their facilities, thereto occasioning environmental degradation through continuous spillage. If the Ministry of Environment becomes compromised or inefficient, an independently funded body be created to do the policing. The reasoning of IHRHL is hitched on the indubitable fact that any agency under the influence of the Government, mandated to check corruption or impunity cannot function adequately (EFCC, NODRA, NOGCMB) because it will either be starved of fund or monopolized.

What Barack Obama called a “cosy relationship between the Oil Companies and the Federal agency which permitted Oil Companies to drill without monitoring “. He was commenting on the 2010 Deep Water Horizon Incident. Thus The U.S Government formed an Independent Agency. 

To forestall further Environmental degradation and abuse of right to life and livelihood we must follow suit.

NOSDRA should be translated into an independent agency without any executive interference in order to police the petroleum sector in terms of environmental management and safety of human life.

The Third discovery is that P. I. B is evil to the extent that it rides on the chariot of “Perverse Reverse Psychology” of giving with one hand and taking with another. This discovery is apparent in S. 116 – 118 where-in it provided for the Petroleum Host Community Fund.(PHCF 10%)  S. 118(6) states that the management of the fund shall be by the Minister of Petroleum, that means the fund moves from Abuja back to Abuja, it may just be like another NDDC thing in Host community.

IHRHL advocate that members of the impacted community become the major stakeholders in the management of the said fund and not the Minister who is not affected by the hazards of oil exploitations.

Another issue is that S. 118 (5) states that the PHCF would be used to repair damaged facilities, Invariably creating strict liability on impacted communities for vandalism that occurs in the community instead of on Oil Companies, in order to easily avert the said fund with claims that the fund is used for repairs.

We suggest that the Oil Companies be made to protect their facilities and take full responsibility for such vandalism except they can prove otherwise i.e. the burden should be on the Oil Companies not on the Host Communities.

The compensatory and penalty section as discussed above is also an escape route to evade payment of adequate compensation for negligence.

S.277 which on surface value seeks to prohibit Gas flaring is terribly inadequate and should either be expunged or amended.

Subsection (2) gives the absolutely powerful Minister extra power to permit gas flaring as long as possible. This is a latent evil against  human right to life and dignity and against the well being of our environment as continuous gas flaring continuously deplete the health and life of humans, the ozone layer and the pollution of the air and environment.

IHRHL suggests that for any day gas is flared, the equivalent financial value for each metric tonne be paid to the Host Community that bears the brunt (not the Federal Government) and continuous flaring for up to 6 months attracts revocation of licence, period.

The perverse reverse psychology in the P.I.B of prohibiting and at the same time elongating period of flare is evil and unacceptable.

This research is not exhaustive but reveals the gamesmanship of the draftsman and his sponsors who intend to further deceive and impoverish the masses while they go home with fat-stolen-pay cheques smiling.

Our environment is our life.

We must protect our human rights to life.

Nsirimovu Courage Esq.
Access To Justice Attorney.

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