PETROLEUM EXPLOITATION AND INDIGENOUS PEOPLES (IP) RIGHTS IN NIGERIA: CAN THE INTERNATIONAL LABOUR ORGANISATION (ILO) CONVENTION

169 HELP?

Adebola Ogunlade*

ABSTRACT: Since 1958, when Royal Dutch Shell pioneered commercial petroleum development in Nigeria, there has
been an influx of other multinational oil companies into the country. However, indigenous peoples (IPs) have been at the receiving end of this resource extraction activity as they have been bedraggled with its deleterious effects on their lives, economy, health, environment, culture and future. This menace is accentuated by the fact that the activities are undertaken with total disregard for their inalienable rights and interests as traditional land owners. Over the years, there has emerged, an immense body of local, regional and international legal frameworks that have given considerable attention, directly and sometimes incidentally, to the recognition and protection of indigenous peoples rights globally and in this case, in Nigeria. Howbeit, the International Labour Organisation Convention (ILO) 169 takes the cake in the international recognition and protection of IP rights. Whilst this paper seeks to underscore the potential of the ILO Convention 169 in safeguarding IP rights viz-a-viz petroleum activities (if ratified and domesticated into domestic law in Nigeria), it further pinpoints, by legal and socio-political analysis, some other germane steps that are sine-qua-non, for the protection of IP rights in deed and not merely in dead letter law, in the country.

The author is currently completing an LLM Degree in Petroleum Law & Policy at the Centre for Energy, Petroleum, Mineral Law and Policy (CEPMLP), University of Dundee, UK. He is a Legal Counsel at the Nigerian National Petroleum Corporation, Abuja. He was called to the Nigerian Bar in 2004. He has special research interests in oil & gas contracts, taxation and fiscal regimes, climate change and environmental law issues in the natural resources industry. He is an Associate of the Chartered Institute of Arbitrators, UK; a Graduate Member of the Energy Institute, UK and a Student Member of the Institute of Chartered Secretaries and Administrators, London. He is Co-Editor -in-Chief of the CEPMLP Annual Review (CAR) 2009/10. Email: adebolaogunlade@yahoo.com

TABLE OF CONTENTS ABBREVIATIONS ................................................................................................................................. iv

LIST OF FIGURES................................................................................................................................. vi

LIST OF TABLES.................................................................................................................................. vii

1.

INTRODUCTION ............................................................................................................................ 1 1.1 The Paradox of Petroleum Development and the Plight of Indigenous People in Nigeria ...................................................................................................... 1

2.

INDIGENOUS PEOPLES IN PETROLEUM PRODUCING AREAS OF NIGERIA ............ 3 2.1 Definition of Indigenous People .................................................................................................. 3 2.2 Indigenous People Groups affected by Petroleum Activities The Niger Delta .......................................................................................................................... 5

3.

LEGAL PROTECTION FOR INDIGENOUS PEOPLES IN PETROLEUM PRODUCING AREAS OF NIGERIA ........................................................................................... 7 3.1 Do Nigerian Laws protect Indigenous Peoples Rights? ............................................................. 7 3.2 Local and International Legal Frameworks relating to the Human Rights Concerns of Indigenous Peoples in the context of Petroleum Exploitation9 3.2.1 Right to Self Determination ............................................................................................. 10 3.2.2 Right to Land and Natural Resources............................................................................... 10 3.2.3 Right to Environment ....................................................................................................... 11 3.2.4 Access to Justice ............................................................................................................... 13 3.2.5 Right to Non-Discrimination ............................................................................................ 14 3.2.6 Right to Participation and Consultation ............................................................................ 15 3.2.7 Economic, Social and Cultural Rights .............................................................................. 15

4.

THE ILO CONVENTION 169 TO THE RESCUE?...................................................................16 4.1 Background on the ILO .............................................................................................................. 16 4.2 Background on ILO 169.............................................................................................................17
ii

4.3 IP Rights relating to Petroleum Activities under ILO 169 ......................................................... 18 4.4 Nigerias status in the ILO and regarding ILO 169.................................................................... 21 5. CONCLUSION AND RECOMMENDATIONS..........................................................................21

BIBLIOGRAPHY

iii

ABBREVIATIONS

ACHPR AILR AIR AJIL ALJR AMJIL AU CAT CEDAW CERD CRC EIA FEPA GEOIELR ICCPR ICESCR ICJ ILM ILO

African Charter on Human and Peoples Rights Australian Indigenous Law Reporter All India Reporter American Journal of International Law Australian Law Journal Reports American Journal of International Law African Union Convention against Torture and other Cruel or Degrading Treatment or Punishment Convention on Elimination of All Forms of Discrimination against Women International Convention on the Elimination of All Forms of Racial Discrimination Child Rights Convention Environmental Impact Assessment Federal Environmental Protection Agency Georgetown International Environmental Law Review International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice International Legal Materials International Labour Organisation
iv

IPs JENRL LFN MOSOP NCLR NDDC NESREA NHRC NSCC NWLR

Indigenous Peoples Journal of Energy & Natural Resources Law Laws of the Federation of Nigeria Movement for the Survival of Ogoni People Nigerian Commercial Law Reports Niger Delta Development Commission National Environmental Standards and Regulations Enforcement Agency National Human Rights Commission Nigerian Supreme Court Cases Nigerian Weekly Law Reports

OMPADEC Oil Mineral Producing Areas Development Commission SC SCNJ TNCs UDHR UN UNEP UNTS UNWGIP WCIP Supreme Court Supreme Court of Nigeria Judgments Transnational Corporations Universal Declaration of Human Rights United Nations United Nations Environmental Programme United Nations Treaty Series United Nations Working Group on Indigenous Peoples World Council of Indigenous Peoples

LIST OF FIGURES Figure 1 Peoples and Cultures of the Niger Delta Region

vi

LIST OF TABLES Table 1 Relevant Human Rights Instruments as ratified by Nigeria

vii

1.0

INTRODUCTION THE PARADOX OF PETROLEUM DEVELOPMENT AND THE PLIGHT OF IPs IN NIGERIA It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against oppression, that human rights should be protected by the rule of law1.

Until very recently (owing to the crescendo of IP militia activities), the tempo of petroleum investments in Nigeria has witnessed remarkable increase. This is traceable to the increasing discovery of petroleum resources in terrains which have hitherto been unexplored due to non-discovery or technological limitations. These activities operate within the domain of traditional communities. Hence, its effects rub off on the communities, either positively, through development or negatively, through human devastation and environmental degradation. On the negative front, Nigerias petroleum exploitation venture has been tainted with sad tales of human rights violations. At the crux of these human rights violations is the degrading treatment meted on IPs in Nigerias oil producing region, the Niger Delta. At exploration, forests are destroyed during seismic operations leading to deforestation, noise pollution, threat to marine life, erosion and loss of vegetation and biodiversity2. In addition, drilling wastes dumping from exploration drilling activities damages land and kills fishes and other living organisms in the water. 3 At the production phase, air pollution, pipeline leakages, operational and accidental spills4 from well blow-outs, gas flaring and
1

Preamble to the Universal Declaration of Human Rights, 10 December, 1948 UNGA Res 217 A (III), UN Doc A/810 71 (1948). 2 In a Shell Internal Position Paper, it was reported that 56.4km2 of mangrove forest had been destroyed by Shell in Rivers State of Nigeria during seismic operations as at 1995. See J.P. Van Dessel, The Environmental Situation in the Niger Delta, Internal Position Paper, February, 1995 at 15. See also Shell-BP V. Usoro (1960) SCNLR 121; Seismograph Service v. Mark (1993) 7 NWLR (Pt. 304) 203. 3 See Umudje & Another. v. Shell-BP (1975) 9-11 SC 155. 4 Recently, it was reported that coastal communities near the Qua Iboe Oil Export Terminal operated by ExxonMobil experienced spill incidents recurrently on December 4, 2009; March 24, 2010 and May 1, 2010. See Sahara Reporters, New York, ExxonMobil Oil Spill in Niger Delta exposes Nigerians to Poisoned Fish, 9 June, 2010 at http://www.saharareporters.com/real-news/sr-headlines/6244-exxonmobil-oil-spill-in-niger-delta-exposes-nigerians-topoisoned-fish.html (last visited on 20 July, 2010). A World Bank Report stated that about 2,300m 3 of oil in about 300 oil spill incidents were recorded in Nigeria annually between 1991 and 1993 in Rivers and Delta States. See World Bank, Defining an Environmental Development Strategy for the Niger Delta (Washington DC, 1995), Vol. 1 p. 49 and Vol. II, Table A. 12 at 95. See also Shell v. Farrah (1995) 3 NWLR (Pt. 382) 148.

venting5 result in harmful consequences on the peoples health, environment, infrastructural development and socio-economic livelihood. Petroleum development in Nigeria has exacerbated the very miserable socio- economic lives of its peoples and fuelled intra/inter community conflicts between the people and their leaders over money sharing, thus systematically undermining the dignity of traditional institutions. This is further worsened by Governments acquiescence and indifference, nay complicity in IP rights violations.6

The foregoing has provoked a plethora of indigenous intellectual efforts via IP declarations aimed at drawing the attention of the international community to their plights7 and lately, an army of violent agitators who have thrown peaceful diplomacy to the winds and embraced outright violence and wanton kidnappings thus, almost making the operating environment uninhabitable for the oil companies.8

This paper examines the place of the ILO 169 Convention as a panacea to IP rights violations in the midst of oil exploitation. The paper opens with a panoramic overview of who the IPs in Nigerias petroleum producing areas are. This is followed by a dissection of relevant existing transnational legal frameworks that guarantee IP rights in relation to oil exploitation. Against the background of the
5

Inspite of the New Gas Masterplan framework and other anti-flaring regulations, Nigeria still flares 40% of its gas as it is produced, losing about $2.5b annually, contributing 12.5% of the worlds gas flaring and ranking as the 2 nd worst gas flaring nation in the world next to Russia. See Andrew Walker, BBC News, Nigerian Gas Profits up in smoke 13 January, 2009 at http://news.bbc.co.uk/1/hi/world/africa/7820384.stm (last visited on 20 July, 2010). See also S.A. Khan, Nigeria: The Political Economy of Oil (Oxford: Oxford University Press, 1994). 6 This is evident in the apathy towards adequate and effective legislative, institutional and judicial support for the IP rights, the repeated use of the Nigerian Military, Police and other security apparatus of the state to intimidate local peoples through indiscriminate arrests, torture, rape and extra-judicial killings. For instance, in the Umuechem Community protest against Shell facility in Umuechem, near PH, Rivers State in October 1990, the police killed about 80 people and destroyed about 500 houses, see A. Nsirimuvu, The Massacre of an Oil Producing Community: The Umuechem Tragedy Revisited (Port Harcourt: Institute of Human Rights and Humanitarian Law, 1994); The Ogoni Crisis, the brutal murder of Ogoni Leaders and the factionalisation of the Movement for the Survival of Ogoni People (MOSOP) till date, see J. Hammer, Nigeria Crude: A Hanged Man and an Oil-fouled Landscape, Harpers Magazine, June 1996; The Army Massacre of 20 November, 1999 in Odi, an Ijaw town in Bayelsa State resulting in the death of more than 2,400 people. See generally, Amnesty International Report, Claiming rights and Resources: Injustice, Oil and Violence in Nigeria Amnesty International Report: Ten years on: Injustice and violence haunt the oil Delta, 2005 at http://www.reliefweb.int/library/documents/2005/amnestynga-03nov.pdf (last visited on 20 July, 2010). 7 This includes the Egi Peoples Declaration, The Oron Bill of Rights, The Ogoni Bill of Rights, The Kaiama Declaration, The Ikwerre Declaration amongst others. 8 This includes the Niger Delta Peoples Volunteer Force, Niger Delta Vigilante Force, Movement for the Emancipation of Niger Delta, Niger Delta Joint Revolutionary Council, Icelanders, Greenlanders, KKK amongst others. However, recently Amnesty and Post-Amnesty plans were established by the Nigerian Government for repentant militants who are willing to be rehabilitated. See Osa Okhomina, All Africa News, Nigeria: FG to Flag-off Post-Amnesty Plan, 26 May, 2010 at http://allafrica.com/stories/201005270478.html (last visited on 20 July, 2010).

apparent inadequacy of existing transnational instruments (as ratified by Nigeria), the paper evaluates the ILO 169 and the need for its ratification and domestication into Nigerian law. In concluding, the paper posits that in addition to the domestication of ILO 169, several other measures need to be taken to assure IPs that their rights will be guaranteed in the course of, and after petroleum activities have been undertaken in their territories.

2.

INDIGENOUS PEOPLES IN PETROLEUM PRODUCING AREAS OF NIGERIA

2.1 DEFINITION OF INDIGENOUS PEOPLES While there is no sacrosanct, universally accepted definition for indigenous peoples, there is a consensus that the concept is attachable to a special category of peoples within a polity. 9 According to James Anaya10 indigenous peoples are the living descendants of pre-invasion inhabitants of lands now dominated by others. This definition presumes that particular lands were inhabited by a distinct people before they were conquered and dominated by new settlers but descendants of these original inhabitants continue to maintain themselves as distinct in tradition and culture based on their past heritage.

The UN Special Rapporteur, J. Martinez Cobo defines indigenous peoples as follows: Indigenous Communities, Peoples and Nations are those which, having historical continuity with pre-invasion and pre-colonial societies that developed in their territories, consider themselves distinct from other sectors of the society now prevailing in those territories, or part of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as

For a detailed discourse on the multifarious definitions of the indigenous peoples concept, see B. Kingsbury, Indigenous Peoples in International Law: A Constructivist Approach to the Asian Controversy, 92 AJIL 412 (1998); UNWGIP, Standard-Setting Activities: Evolution of Standards concerning the Rights of Indigenous Peoples, Working Paper by the Chairperson-Rapporteur, Mrs. Erica-Irene Daes, Concept of Indigenous Peoples, UN Doc. E/CN.4/SUB.2/AC/1996/2. 10 S.J. Anaya, Indigenous Peoples in International Law (New York: Oxford University Press, 1996).

the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.11 The posers to the above are the twin issues of preoccupation and non-dominance: How do we exactly determine who, from time immemorial was the first to inhabit a territory, even before foreign conquest? Secondly, what criteria do we apply to determine non-dominance, is it population, economic or political? The World Council of Indigenous Peoples (WCIP) in its draft Covenant attempted to douse the latter contention by using the criterion of lack of political control.12 However, this does not completely stop the other criteria from resonating when IP issues are in contention.13 Suffice to say that while the above definitions would neatly fit into many IP categories globally, 14, it may not exhaustively cover the circumstances of some others especially in Africa 15 and Asia who might have been marginalized by the contemporary push for development, and therefore require protection by some form of affirmative action.16 It is to this extent that the ILO added the concept Tribal Peoples in its Conventions17 to cover a more extensive scenario for local and international protection for these peoples rather than establishing a priority on whose ancestors first arrived in a territory.18

11

J. Martinez Cobo, Report of the Special Rapporteur on the Study of the Problem of Discrimination against Indigenous Populations, UN Doc. E/CN.4/Sub2/1986/7Add4. See also B. Goehring, Indigenous Peoples of the World: An Introduction to Their Past, Present and Future (Saskatchewan: Purich Publishing, 1993). 12 The Need for International Convention, A World Council of Indigenous Peoples Concept Paper, April 1981 at www.cwis.org/fwdp/International/intconv.txt (last visited on 20 July, 2010). 13 Several international law experts have written on the subject of indigenous peoples. See G.C. Marks, Indigenous Peoples in International Law: Significance of Francisco de Vitoria and Bartolome de Las Casas in D.W. Greig and P. Aiston, ed., The Australian Year Book on International Law Vol. 13, 1992 which espoused the intellectual inputs of 16 th Century Spanish jurists, Francisco de Vitoria and Bartolome de Las Casas on the use of international law for the protection of American Indians. See also F.S. Cohen, The Spanish Origin of Indian Rights in the Law of United States 31 Geo. L.J. 1 (1942); D. Sanders, The Re-emergence of Indigenous Questions in International Law, 3 Canadian Human Rights Yearbook 3 (1983); S.J. Anaya, Supra. note 10. 14 This includes the Aboriginal People of Australia and Canada, the Maoris of New Zealand and the Indians of the United States, the Saami of Far North Europe. 15 This perhaps explains, in part, the conflicts in Warri in the Delta Region of Nigeria between the Itsekiris and the Urhobos who both make aboriginal claims to Warri. 16 Nasirdeen Usman The Rights of Indigenous Peoples and Mineral Resource Development: Global Trends and the Nigerian Question, Unpublished PhD Thesis (CEPMLP, University of Dundee, UK, 2003) at 21. 17 International Labour Organisation, Convention concerning the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries 328 UNTS 247 (1957) (hereinafter ILO 107) adopted on 26 June, 1957, entered into force on 2 June, 1959; International Labour Organisation, Convention concerning Indigenous and Tribal Peoples in Independent Countries 28 ILM 1382 (1989) (hereinafter ILO 169) adopted on 27 June, 1989 and entered into force on 5 May, 1991. 18 See Art. 1(1)(a) Ibid.; See also Birgitte Feiring, Indigenous and Tribal Peoples: A Guide to ILO Convention No. 169, International Labour Standards Department, 2009 at 9 at http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--normes/documents/publication/wcms_106474.pdf (last visited on 20 July, 2010).

2.2

INDIGENOUS PEOPLE GROUPS AFFECTED BY PETROLEUM ACTIVITIES THE NIGER DELTA

Nigeria has over 250 indigenous people groups. This includes the Ijaw, Ogoni, Yoruba, Edo, Igbo, Urhobo, Itsekiri, Isoko, Efik, Ibibio in the South; and the Fulani, Hausa, Kanuri, Nupe, Tiv in the North of Nigeria to mention a few. However, petroleum activities are presently been actively undertaken in the Delta area of the South of Nigeria. Today, the Niger Deltas oil accounts for 90% of Nigerias export and about 80% of its national revenue. The Niger Delta is the largest lowland forest and aquatic area in the West African sub-region, the 2nd largest Delta in the world and the largest wetland in Africa. It has a population of over 45 million people. By political definition, the Niger Delta comprises all contiguous oil producing areas of Nigeria which covers parts of Akwa-Ibom, Cross Rivers, Delta, Edo, Rivers, Bayelsa (South-South); Ondo (South West Yoruba); and Abia, Imo (South East Igbo) states. The Niger Delta comprises several indigenous people groups where petroleum exploitation is being undertaken.19 Figure 1

Source: Ekeh Peter P. Nigeria and Africa: Lingusitic Maps, Urhobo Historical Society, New York, USA, 2010.20

19 20

This includes the Ijaws, Ogonis, Urhobos, Itsekiris, Igbos, Ilaje Yorubas, Edo, Ibibios. Available at http://coral.lili.uni-bielefeld.de/langdoc/EGA/Proposals/Ega-proposal2/sv019026.jpg (last visited on 20 July, 2010).

Notably, some IPs have earned a special place in the fight for the safeguard of their rights amidst petroleum exploitation, perhaps due to their obvious minority status in Nigerias federal equation and their vociferous advocacy for IP rights. The Ogonis and Ijaws belong to this genre of IPs.

THE OGONI (KEGBOID) PEOPLE They are a population of about 500,000 people who have settled in the area well before the 15th century. They occupy a land area of 404 square miles in the Niger Delta area of Nigeria; with a very high population density.21 The IPs depend largely on farming and fishing for their means of livelihood. Oil was first discovered in Ogoni by Shell in 1958 at a time when Nigeria was under colonialism. Petroleum activities in Ogoniland has resulted in environmental degradation, absence of control over their natural resources, land and water pollution thus undermining their agricultural prospects and depriving them of their means of sustenance without any alternative remedies, desecration of their spiritual and cultural heritage, untold economic hardships, community conflicts, atrocious security and human right abuses which culminated in the murder of the MOSOP leader, Ken Saro-Wiwa and eight (8) others.22 In addition, the political and revenue-sharing structure of the Nigerian federation is in their disfavor.

THE IJAW (IZON/IJO) PEOPLE The Ijaws are about 15 million people spread over 6 out of the 36 states of Nigeria 23. They are regarded as the oldest settlers in the Niger Delta of Nigeria.24 Like the Ogonis, they are into farming and fishing and have been beset with several years of rights violations.25 Oil was first discovered in Nigeria in 1956
21 22

See Ken Saro Wiwa, Genocide in Nigeria: The Ogoni Tragedy (Saros Publishers, Port Harcourt, Nigeria, 1992) See BBC News, 1995: Nigeria hangs Human Rights activists, 10 November, 1995 at http://news.bbc.co.uk/onthisday/hi/dates/stories/november/10/newsid_2539000/2539561.stm (last visited on 20 July, 2010). A series of suits were filed against Shell beginning in 1996, under the Alien Torts Statute 1789. On June 9, 2009, Shell agreed to an out-of-court settlement of $15.5 million with the victims families. See the cases of Wiwa v. Anderson 01 Civ. 1909; Wiwa v. Royal Dutch Petroleum 96 Civ. 8386 and Wiwa v. Shell Petroleum Development Company U.S. App. LEXIS 11873(2d Cir.) 2009. 23 They are found in Bayelsa, Rivers, Delta, Akwa-Ibom, Edo and Ondo States of Nigeria. 24 E.J. Alagoa, A History of the Niger Delta: An Historical Interpretation of Ijo Oral Traditions (Ibadan, Nigeria: Ibadan University Press, 1972) at 17. 25 Y Banigo The State, TNCs and Indigenous Peoples: The case of the Ijo-speaking People, Unpublished PhD Thesis (University of Port Harcourt, 2006) at 200-201.

by Shell in Oloibiri, an Ijaw territory in Nigeria. Their struggle against human right abuses, courtesy of petroleum activities has led to the formation of several pressure groups.26 Notably, after about 50 years of independence and in extraordinary circumstances, an Ijaw was sworn in as Nigerias President on 6 May, 2010.27

3.0

LEGAL

PROTECTION

FOR

INDIGENOUS

PEOPLES

IN

PETROLEUM

PRODUCING AREAS OF NIGERIA 3.1 DO NIGERIAN LAWS PROTECT INDIGENOUS PEOPLES RIGHTS?

In Nigeria, the grundnorm is the Constitution of the Federal Republic of Nigeria, 1999 (the 1999 Constitution). It has prevailing, overriding force over any other law and other laws derive their validity therefrom.28 Nigerias component units, the states, are empowered to make laws for the good governance of their states, subject to the supremacy of the Federal Constitution. Customary law is also recognized by Nigerian law provided it is not repugnant to natural justice, equity and good conscience.29

Generally, chapter 4 of the 1999 Constitution of the Federal Republic of Nigeria guarantees fundamental civil and political rights of its citizens30 whilst also providing for non-justiciable socioeconomic rights in chapter 2. Nigeria is a member of the UN, ILO and AU and signatory to a number of international treaties relating to human rights as it concerns indigenous peoples.

26 27

This includes the Ijaw Youth Movement, Ijaw National Council and Ijaw Elders Forum. Former Vice-President Goodluck Jonathan was appointed President after the demise of the erstwhile President Umaru Yaradua on 5 May, 2010. 28 Section 1(3), 1999 Constitution of the Federal Republic of Nigeria Cap. C23 LFN 2004 (hereinafter the 1999 Constitution). See also Lakanmi v. Attorney General, Western Nigeria (1970) 6 NSCC 143. 29 See Okonkwo v. Okagbue (1994)12 SCNJ 89. 30 Section 33-44, 1999 Constitution.

Table 1 RELEVANT HUMAN RIGHTS INSTRUMENTS AS RATIFIED BY NIGERIA31 Instrument Rights (ICCPR)32 International Covenant on Economic, Social 29/07/1973 and Cultural Rights (ICESCR)33 Convention on the Elimination of All Forms of 16/10/1967 Racial Discrimination (CERD)34 Convention on Elimination of All Forms of 13/06/1985 Discrimination Against Women (CEDAW)35 Convention on the Rights of a Child (CRC)36 Degrading Treatment or Punishment (CAT)37 International Labour Organisation (ILO) 29 17/10/1960 (Forced Labour) ILO 105 (Abolition of Forced Labour) ILO 182 (Worst Forms of Child Labour) ILO 100 (Equal Remuneration) ILO 111 (Discrimination) ILO 138 (Child Labour) Rights38 (ACHPR) 17/10/1960 02/10/2002 08/05/1974 02/10/2002 02/10/2002 19/04/1991 Date of Ratification

International Covenant on Civil and Political 29/07/1993

Convention Against Torture and other Cruel or 28/06/2001

African Charter on Human and Peoples 22/06/1983

31

Adapted from ILO/ACHPR, Nigeria: Constitutional, Legislative and Administrative provisions concerning Indigenous Peoples, International Labour Office, Geneva, ILO, 2009. 32 International Covenant on Civil and Political Rights, UNGA Res. 2200A (XXI) signed on 16 December, 1966. 33 International Covenant on Economic, Social and Cultural Rights, UNGA Res. 2200A (XXI) signed on 16 December, 1966. 34 Convention on the Elimination of Racial Discrimination, 660 UNTS 195 signed on 7 March 1966, entered into force on 4 January, 1969. 35 Convention on Elimination of Discrimination against Women, 1249 UNTS 13 signed on 18 December, 1979, entered into force on 3 December, 1981. 36 Child Rights Convention GA Res. 44/25 signed on 20 November, 1989, entered into force on 2 September, 1990. 37 Convention against Torture GA Res. 39/46 signed on 10 December, 1984, entered into force on 26 June, 1987.

Nigerian laws tend to be directed at national integration, thus de-emphasising group rights while emphasizing individual rights and equality of citizenship, supposedly in a bid to avoid disintegration along ethnic lines.39 This is moreso, given the rising trends of ethnic militancy in the country. As a member of the UN Human Rights Council, Nigeria abstained from voting on the UN Declaration on the Rights of Indigenous Peoples, a classic show of reticence viz-a-viz IP rights. However, the African Charter on Human and Peoples Rights (ACHPR) which pursuant to its domestication has acquired the full force of law, (higher than municipal law and inferior only to the 1999 Constitution of Nigeria,40) contains provisions for safeguard of people rights41 as distinct from individual rights.42 As evident from the foregoing, whilst there is no specific reference to IP rights under Nigerian law, save for the ACHPR as domesticated, the recognition of these rights can however be deciphered from the 1999 Constitution, existing local environmental & petroleum laws and ratified international human rights instruments. 3.2 LOCAL AND INTERNATIONAL LEGAL FRAMEWORKS RELATING TO THE HUMAN RIGHTS CONCERNS OF INDIGENOUS PEOPLES IN THE CONTEXT OF PETROLEUM EXPLOITATION

The various rights that address IP issues in Nigeria and the relevant legal instruments are discussed extensively hereunder:

38

21 ILM 58 (1982). Adopted on 27 June 1981 and entered into force on 21 October, 1986. Domesticated into Nigerian Law as African Charter of Human and Peoples Rights (Ratification and Enforcement) Act 1983, Cap. A9 LFN 2004 pursuant to Section 12(1), 1999 Constitution. 39 Section 15 & 42, 1999 Constitution. 40 See the lead judgment of Ogundare JSC in the Nigerian Supreme Court case of Sani Abacha and Ors v. Chief Gani Fawehinmi (2000) 6 NWLR 228; Ogugu v State (1994) 9 NWLR (Pt 366) 1. 41 For a detailed discourse on the term peoples see R.N. Kiwanuka, The Meaning of People in the African Charter on Human and Peoples Rights 82 AMJIL 80 (January 1988) p. 83; I. Brownlie, The Rights of Peoples in Modern International Law, 1992. 42 Art. 19-24, ACHPR.

3.2.1 RIGHT TO SELF DETERMINATION The right to self determination is predicated on the philosophical affirmation of the human drive to translate aspiration into reality, coupled with postulates of inherent human equality.43 The concept of self determination gained prominence in international intellectual discourse around the 1st World War.44 The 2nd World War brought about the formation of the United Nations (UN) and catalyzed the doctrinal recognition of self determination in the UN Charter45 and subsequently, other international covenants. Article 1(1) of both the ICCPR and ICESCR provide that All peoples have the right to selfdetermination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Furthermore, Article 20(1) ACHPR specifically guarantees the unquestionable and inalienable right to self determination for all peoples.46 There is, however, no provision in the 1999 Constitution or any other domestic legislation that guarantees this right.

3.2.2 RIGHT TO LAND AND NATURAL RESOURCES In underscoring the symbolic attachment that IPs have to land rights47, Martinez Cobo opined thus: For such peoples, the land is not merely a possession and a means of production. The entire relationship between the spiritual life of the indigenous peoples and mother Earth, and their land, has a great manyseated implication. Their land is not a commodity which can be acquired, but a material element which can be enjoyed freely. Article 17 of the UN Universal Declaration of Human Rights (UDHR) posits that everyone has the right to own property as well as in association with others and that no one shall be arbitrarily deprived of this right. There are also supporting case laws on IP rights to property.48

43 44

See E. M. Morgan, The Imagery and Meaning of Self- Determination 20 N.Y.U. J. Intl L.Pol.355-358 (1988). Umozurike O. Umozurike, Self Determination in International Law (1972) at 11-12. 45 Charter of the United Nations, 1 UNTS XVI Art. 1, para. 2. 46 Similar provisions are contained in Article 3, UN Declaration on the Rights of Indigenous Peoples UNGA 61/295 (2007). See also Western Sahara ICJ case (1975). 47 See B. Ganz, Indigenous Peoples and Land Tenure: An Issue of Human Rights and Environmental Protection 9 GEOIELR 173 (1996). 48 Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2002) AILR 12; Mabo v.Queensland 66 ALJR 408 (1992). See also M.W. Hunt, Mineral Development and Indigenous Peoples The Implications of Mabo Case 11 No. 3 JENRL 155 (1993).

10

However, under Nigerian laws, as in many countries today, land vests in the State and indigenous title to land is usually overruled on the basis of overriding state/public interest, including purposes of petroleum development, usually compensated with very paltry sums.49 On IP right to natural resources, Article 21(1) ACHPR provides that all peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.50 Conversely, Section 1 of the Nigerian Petroleum Act51 vests the entire ownership and control of all petroleum in, under or upon any lands in the State52 3.2.3 RIGHT TO ENVIRONMENT Principle 1 of the Stockholm Declaration53 provides that Man has the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well-being bearing a solemn responsibility to protect and improve the environment for present and future generations. Generally, Principle 13 of Rio54 requires that States develop national laws regarding liability and damage for victims of environmental damage. Article 24 of the ACHPR provides that all peoples shall have the right to a general and satisfactory environment favourable to their development.55

49

Section 1 Land Use Act 1978 Cap. 202 LFN 1990; Section 44(1) 1999 Constitution. See also B. Goehring, Supra. note 11; Abiyoye v. Yakubu (1991) NWLR Pt. 130 SC. 50 See also Art. 24 ICESCR; Social and Economic Rights Action Center (SERAC) and Economic Rights Action Center for Economic and Social Rights (CESR) v. Nigeria, Communication 155/96 (2001). See J. Nwobike The African Commission on Human and Peoples Rights and the Demystification of Second and Third Generation Rights under the African Charter: SERAC and CESR v. Nigeria (2005) 2 African Journal of Legal Studies 129-146. 51 P10 LFN 2004. 52 See also Petroleum (Drillings and Production) Regulations Act 1969; Petroleum Decree 51 of 1969, Petroleum (Drilling and Regulations) Decree of 1969; The Petroleum Production and Distribution (Anti-sabotage) Decree of 1975; the Miscellaneous Offence (Anti-Sabotage) Decree 1984 and the Land Use Decree of 1978 (Section 14) which vest all land and petroleum in the State. See also Attorney General of the Federation v Attorney General of Abia State & Others (No. 2) (2002) 6 NWLR (Pt. 764) 542 S.C. 53 United Nations Conference on the Human Environment, Report of the United Nations Conference on Human Environment, UN Doc. A/CONF. 48/14/REV.1 and Corr. 1 (1972), reprinted in 11 ILM (1416) (1972) (hereinafter Stockholm Declaration). 54 United Nations Conference on Environment and Development, Rio Declaration on Environment and Development UN Doc. A/Conf. 151/S/REV. 1 (1992), reprinted in 31 ILM 874 (1992) (hereinafter Rio Declaration). 55 In SERAC case Supra. note 50, one of the most notable cases under the ACHPR, it was held that environmental degradation occasioned by oil exploitation activities of Shell in collusion with the Nigerian Government was a violation of

11

At the national level, a non-justiciable provision of the 1999 Constitution in Section 20 requires that the State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria. As shown from case law, this provision has been read complementarily with the civil and political rights.56 Furthermore, the Petroleum Act 1969, Nigerias principal petroleum legislation makes general provisions on the prevention of pollution of water courses and the atmosphere 57. Pursuant to this legislation, the Petroleum (Drilling and Production) Regulations 196958 also makes snappish provisions to the extent that oil licensees or lessees shall adopt all possible precautions to prevent pollution and where it occurs or has occurred, shall take prompt steps to control and if possible end it 59 The vague requirement for the conduct of oil operations in a proper and workmanlike manner and in accordance with good oilfield practice only seem to amplify the terseness and inadequacy of the provisions for protection of the peoples environment.60 The Associated Gas Re-injection Act 197961 which seeks to ban gas flaring initially stated that the deadline for the cessation of gas flaring would be 1 January, 1984. However, the fine for noncompliance was very paltry and the flaring deadline has been shifted at various times to 1 January, 1985; 1 January, 2004; 31 December, 2008 and most recently 31 December, 2012 by a new amendment to the old law with more stringent penalties for default.

the Ogoni peoples environmental and human rights. See also Shell Petroleum Development Company v. Ijaw Aborigines of Bayelsa State 2006 (Unreported). 56 According to Judge C.Weeramantry, former Vice President of ICJ A right to breath, by implication, is the right to breath pure air which is part of the 1999 Constitutional right to life; and so by common sense, judges can achieve very environmentally powerful results, UNEP Biannual Bulletin of Environmental Law, Special Issue No. 2, p. 7. See also Archbishop Okogie v. AG of Lagos State, Nigeria (1981) 2 NCLR 337; Mayagna (Sumo) Awas Tingni Cmty. v. Nicaragua, 2001 Inter-Am. Ct. H.R. (ser. C) No. 79 (Aug. 31, 2001); Maya Indigenous Cmty. of the Toledo Dist. v. Belize, Case 12.053, Inter-Am C.H.R., Report No. 40/04, OEA/Ser.L/V/II.122, doc. 5 rev. 1 at 727 (2004); Yakye Axa Indigenous Cmty. of the Enxet-Lengua People v. Paraguay, Case 12.313, Inter-Am C.H.R., Report No. 2/02, Doc. 5 rev. 1 at 387 (2002); Kichwa Peoples of the Sarayaku Cmty. & Its Members v. Ecuador, Case 167/03, Inter-Am. C.H.R., Report No. 62/04, OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 308 (2004); Paramand Katra v. Union of India [1989] AIR 1989 SC 2039: 1990 Cvi LJ 671; Bandua Mukti Morcha v. Union of India [1984] AIR 1984 SC 802; Mahendra Pratap Singh v. State of Orissa [1997] AIR 37. 57 Supra. Section 9(1)(b)(iii). 58 Cap. 350 LFN 1990 P. 12766. 59 Ibid. Regulation 25. 60 Ibid. Regulation 36. 61 Cap. A2 LFN 2004.

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The Federal Environmental Protection Agency Act 198862 established the Federal Environment Protection Agency (FEPA) to centrally administer a national environmental policy in Nigeria.63 A National Policy was thus formed.64 This policy advocates the adoption of mechanisms to, among others; prescribe operational standards aimed at eliminating or minimizing adverse environmental effects of mineral and oil development.65 However, FEPA is beset with ill-equipped manpower and incessant authority conflicts with other governmental agencies66 due to lack of policy coherence and harmonization with various regulatory authorities in the country. Although the FEPA Act has recently been repealed and replaced with the National Environmental Standards and Regulations Enforcement Agency (NESREA) Act 2007, this new enactment still faces similar challenges as the old. The Environmental Impact Assessment Decree of 199267 requires a mandatory environmental impact assessment of new major projects which may impact the environment. 68 This includes oil development projects.69 However, as stated in the EIA Act, this requirement applies to new projects only. How about past and current projects that predate the Decree with the attendant consequences of environmental degradation? 3.2.4 ACCESS TO JUSTICE

Article 30 of the ACHPR establishes the African Commission on Human and Peoples Rights to promote and safeguard rights, including people rights.70 The ACPHR provides for a complaint mechanism for non-state parties71, which shall be considered only after local remedies have been exhausted among other conditions.72

62 63

Cap. F10 LFN 2004. See Federal Environmental Protection (Amendment) Decree No. 59, 1992 (Supplement to Official Gazette Extraordinary No. 68, Vol. 79, 23 December, 1992) Section 5(b). 64 This National Policy was published in 1989 and updated in 1999. 65 Ibid. chapter 4.11 and 4.14. 66 This includes the Department of Petroleum Resources, Nigerian National Petroleum Corporation and Ministry of Petroleum Resources. 67 Now Environmental Impact Assessment Act 1998 Cap. E.12 LFN 2004 (hereinafter the EIA Act) 68 Ibid. Section 1 and 2. 69 Ibid. Section 13 and Schedule, EIA Decree. In 1995, FEPA issued more specific sectorial guidelines for the various stages of petroleum development. 70 See SERAC case Supra, notes 50, 55. 71 Art. 55-59, ACHPR. 72 Art. 56, ACHPR.

13

Section 36 of the 1999 Constitution guarantees the right to fair hearing. Furthermore, Section 46 provides that Federal and States High courts shall provide redress for human rights violations. Unlike its Indian counterparts, over the years, especially during military rule, the Nigerian justice system has been bedraggled with bureaucratic delays, lack of independence, corruption and inadequate compensation for IP victims. However, there seems to be a glimmer of hope in the light of recent judicial decisions.73 In addition, the National Human Rights Commission (NHRC)74 has a mandate to promote and protect human rights in Nigeria. However, its lack of independence and financial autonomy has undermined it effectiveness.75 The NHRC Act defines vulnerable groups but fails to recognize IPs as vulnerable groups. 3.2.5 RIGHT TO NON-DISCRIMINATION

Nigeria has ratified the UN Convention on the Elimination of Racial Discrimination (CERD) and the ILO Convention 111 on Discrimination (Employment and Occupation) but they are both yet to be domesticated. However, Section 15 of the 1999 Constitution prohibits discrimination on grounds of place of origin, religion, sex, status and ethnic affiliation. This is aimed at ensuring fair representation of various indigenous groups across organizations.

Section 14 of the 1999 Constitution advocates the federal character principle for appointment into government agencies. However, this provision does not cover private sector employment, a category which the oil multinationals belong. IPs have always complained of discrimination in employment.76 Suffice to add that these provisions of the 1999 Constitution are non-justiciable.

73

On 4th July, 2010, a Federal High Court ordered Shell to pay N15.4 billion ($100.6 million) as special and punitive damages in favour of Ejama-Ebubu community in Tai Eleme Local Government Area of Rivers State over a 1970 oil spill. Arguably, the compensation appears inadequate; however, it is a step forward in Nigerias judicial activism in this area. 74 Established by the NHRC Act Cap. N46 LFN 2004. 75 The NHRC is essentially under the control of the Minister of Justice and Attorney General of the Federation whose office interfered with the Commissions activities as evident in the sack of the Commissions Executive Secretary, Bukhari Bello due to his anti-partisan ideological stance. 76 See A. Onduku, Towards a culture of peace in the Niger Delta, at http://www.waado.org/nigerdelta/essays/LastingPeace.html (last visited on 20 July, 2010).

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3.2.6 RIGHT TO PARTICIPATION AND CONSULTATION

Principles 13 & 22 of Rio Declaration recognize the need for access to information and right to participation in decision making. This is further amplified in Articles 21 of the UDHR and Article 25 of the ICCPR. In Nigeria, people participation, consultation and the right of expression in governance and development is recognized under the 1999 Constitution77 and the EIA Act.78 However, in reality, hitherto petroleum activities have been shrouded in secrecy with little or no access to industry information79 and a lack of clear, measurable process of free, prior and informed consent of IPs. 3.2.7 OTHER ECONOMIC, SOCIAL AND CULTURAL RIGHTS Principle 1 of the Rio Declaration provides that human beings are the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature. Article 27 of the ICCPR provides for the protection of the rights of minorities to enjoy their own culture, profess and practice their own religion and use their own language. Apart from the protection of civil and political rights under the ACHPR,80 the ACHPR also provides for economic, social and cultural rights. In the SERAC case81, the African Commission on Human and Peoples Rights submitted that by environmental pollution, the peoples right to property (Art. 14); health (Art. 16); environment (Art. 24) and right to food (Art. 4, 16 and 22) had been infringed. A litany of other economic, social and cultural rights is contained in other international instruments ratified by Nigeria.82 At the national front, Chapter 2 of the 1999 Constitution profiles these rights, although they are non-justiciable.83

77 78

Section 14(2)(c), 14(4), 39 and 40, 1999 Constitution. Section 2 & 62, EIA Decree. 79 The passage of the Petroleum Industry Bill and Freedom of Information Bill both pending before the National Assembly may provide some needed panacea in this respect. 80 Art. 3-15, ACHPR. 81 Supra. note 50. 82 Right to Adequate standard of living and health Art. 25 UDHR, Art. 11 & 12 ICESR; Right to culture Art. 27 UDHR, Art. 15 ICESR; Right to work Art. 23 & 24 UDHR, Art. 22 ICCPR, Art. 6 & 7 ICESR. 83 Section 13-24, 1999 Constitution.

15

The Niger Delta Development Commission (NDDC)84 has also been established as successor organization to OMPADEC85 to evolve a master plan for the physical, environmental protection and socio-economic development of the Niger Delta.

4.0 THE ILO CONVENTION 169 TO THE RESCUE?

A discourse on the legal framework for the protection of IP rights in petroleum exploitation would not be complete without an analysis of the IP protection provided for by the ILO.

4.1

BACKGROUND ON ILO

Sequel to the Second World War, the need to improve the quality of peoples lives globally propelled international law, driven by the UN to more than ever before be involved in the protection of individual and group rights. One of the measures taken was the formation of the International Labour Organisation (ILO). The ILO is a UN specialized agency involved in standards-setting through the adoption of Conventions and recommendations and providing assistance to governments and others in putting them into practice.86 Suffice to add that the ILO is the first to adopt a Convention concerned with IP rights.

The ILO is unique among UN agencies because it is not composed only of governments. It has a tripartite constitution, comprising governments, employers and workers. These three parties are the ILO constituents, who all have formal roles to play in the decision-making and procedures of the institution. The tripartite structure of the ILO is reflected throughout its structure, including in the International Labour Conferences and the ILO Governing Body. However, IPs as such do not have a formal position within the ILO tripartite structure, though they sometimes find practical ways to engage ILO supervisory bodies through worker organizations.87

84 85

Niger Delta Development Commission Act 2002 Cap. N86 LFN 2004. Oil Mineral Producing Areas Development Commission Decree No. 23 of 1992. 86 Birgitte Feiring Supra. note 18 at 173. As at 2009, the ILO had adopted 188 Conventions covering sundry issues. 87 Ibid.

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4.2

BACKGROUND ON ILO 169

The ILO has adopted two Conventions on IP rights viz: Convention 107 concerning the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries of 195788 which was later revised and replaced with Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries of 1989.89 Following a Report of the ILO Committee on Indigenous Populations in 195790, the need to set up a detailed framework to deal with IP rights on a transnational level became more pertinent. This brought about the ILO Convention 107. ILO 107 uses the words populations and not peoples, to avoid any controversial notion on self determination associated with the latter.91 The basic themes of the Convention as indicated in the Preamble are the protection of the indigenous and tribal population and their integration into the mainstream of nationhood.92 It however postulates that the integrationist approach is subject to certain proviso: it prohibits artificial assimilation93 and coercion in integration process,94 it also imposes a duty to take due account of the cultural, religious and social values of the indigenous population.95 On mineral resource activities, the Convention recognizes the rights of land ownership by the traditional population.96 Howbeit, it states that this right could be negated in the face of economic development needs.97 This includes petroleum development. It provides for compensation with land of commensurate value or money. This does not in any way equate with the traditional rights and attachment of indigenous population to their land.

88 89

ILO 107 Supra. note 17. ILO 169 Supra. note 17. 90 Report of the Committee on Indigenous Populations, International Labour Conference, Record of Proceedings, 49th Session, 1957 at 722. 91 Art. 1 (1)(a)(b) ILO 107 92 Integration includes taking special measures to protect them in a non-discriminatory manner from the vagaries of modernisation and lifting their socio-economic life to be at par with other parts of the country. See Art. 2 & 3 ILO 107 93 Art. 2(2) Ibid. 94 Art. 2(3) Ibid. 95 Art. 4 Ibid. 96 Art. 11 Ibid. 97 Art. 12 Ibid.

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The philosophy of assimilation and integrationism which underlied this Convention became its albatross as it was seen as anachronistic and a breach of the social and cultural ethos of the indigenous populations.98 In the words of P. Thornberry99, ILO 107 is as much a contribution to the cultural destruction of indigenous groups as it is to their salvation. In 1986, the ILO Governing Body convened a Meeting of Experts which recommended a review of ILO 107. This issue was taken further in the 1988 and 1989 annual sessions of the International Labour Conference. In June 1989, ILO Convention 169 was adopted. 4.3 IP RIGHTS RELATING TO PETROLEUM ACTIVITIES UNDER CONVENTION 169 OF 1989 The Preamble of Convention 169 which embodies its basic theme recognises: the aspirations of (indigenous) peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live100 It seeks to bridge the lacuna in the previous Convention by expunging the assimilation and integrationist concept whilst recognizing and advancing the preservation of the indigenous peoples cultural integrity101 and their rights to participate in all development decisions that affect them.102 Although, the use of the word peoples in place of population was well received by representatives of IPs in the deliberations as it recognized the existence of organized societies with identities of their own rather than mere groupings sharing some cultural or social characteristics, it sparked off some dissent from the government side of the deliberations who argued that it might impugn on their sovereign powers, it was however agreed that the use of the

98

See P. Thornberry, International Law and the Rights of Minorities (New York: Oxford University Press, 1991) at 342-362. 99 Ibid. at 395. 100 Preamble paras. 5 & 6. 101 See Art. 5 ILO 169. 102 See Art. 7 Ibid.

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word peoples would not be construed as having any meaning ascribed to it under international law.103 Specific rights for Indigenous Peoples under Convention 169 include: i) Governments responsibility to develop, with the participation of the peoples, action plan for the protection of their right granted under national laws, the promotion of full realization of their economic, social and cultural rights and to assist them to eliminate socio-economic gaps that may exist between indigenous and other members of the national community.104 ii) Enjoyment of full rights without hindrance or discrimination and with due consideration of the social, cultural and religious values of the people.105 iii) Appropriate and adequate consultation and participation of the people to be done in good faith.106 iv) Right to determine their development priorities as it affects their socio-economic and cultural lives.107 This right may appear to undermine governments powers to design development plans for the country. However, the ILO has stated that the right does not confer on IPs, veto over development projects but it provides a platform for the people to have a say in development activities that concern them and to evaluate the social, cultural, economic and environmental ramifications of such activities. Hence, the right is inchoate, as it is limited to the extent allowable by national policy With regards to petroleum development, Part II of the Convention guarantees as follows: i) In applying the provisions of the Convention, Government shall respect the special importance for the cultures and spiritual values of the people with respect to their relationship with their land or territories.108

103 104

Art. 1(3) Ibid. Art. 2 Ibid. 105 Art. 3, 4 & 5 Ibid. 106 Art.6 Ibid. 107 Art. 7 Ibid. 108 Art. 13 Ibid.

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ii) The right of ownership and possession of the peoples over land. This covers land which they own or are in possession of without ownership.109 iii) The rights of the peoples to the use, management and conservation of natural resources pertaining to their lands.110 It remains a matter of conjecture whether this right should be read conjunctively with Article 14 which confers on IPs the right to use and management of lands not only owned by them but those which they are in possession of or which they otherwise use. This appears to be a more extensive guarantee. Furthermore, does the right to surface land extend to sub-surface rights, and by extension sub-surface minerals? This position has been staunchly opposed by governments based on the wide held notion that ownership of mineral resources vests in the State. To this extent, Article 15(2) provides that in cases where government retains subsurface mineral rights, governments shall establish or maintain procedures through which they will consult with the peoples to ascertain the implications of resource exploitation to their interests. It further stipulates that wherever possible; the people shall participate in the benefit of such activities and receive a fair compensation for any damages which they may sustain as a result of such activities. The phrase wherever possible casts a sore point on this right as it could serve as an alibi for government to renege on its responsibilities. iv) In view of the fact that relocation of peoples might become imperative prior to commencing development activities, Convention 169 provides that where the relocation of peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. It further provides that where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations.111 The germane questions are: what are the exceptional measures that will necessitate relocation? What are these appropriate procedures to be followed when consent cannot be obtained? Convention 169 does not seem to have straight answers. Understandably, these should be spelt out in the national laws as required by the Convention. Furthermore, the provision on the right of the people to return to their lands once the grounds for relocation ceases
109

Art. 14 Ibid. For a detailed treatise on classes of interest in land, see E.H. Burn, Cheshire and Burns Modern Law of Real Property (15th ed.) (London: Butterworth, 1994); B. Perrins, Understanding Land Law (3rd ed.) (London: Cavendish, 2000). 110 Art. 15 ILO 169 Supra. 111 Art. 16 Ibid.

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to exist may not be readily beneficial with respect to petroleum development except there are express provisions on decommissioning and land rehabilitation/reclamation after exploitation. v) Respect for procedures established by the peoples for the transmission of land rights.112 Notwithstanding its shortcomings, the ILO 169 remains the most extensive international treaty that espouses the recognition and protection of the rights of IPs. 4.4 NIGERIAS STATUS IN THE ILO AND REGARDING ILO 169

Sadly, though Nigeria is a member of the ILO113 and is signatory to a number of ILO Conventions114 as profiled above, Nigeria is yet to ratify the ILO Convention 169.

5.0

CONCLUSION AND RECOMMENDATIONS

The foregoing has underscored the lack, nay inadequacy of clear and specific provisions regarding IP rights viz-a-viz petroleum development in Nigeria. It has also highlighted the lack of clear political will on the part of the Nigerian Government to protect and promote IP rights relating to its oil ventures. Globally, the chorus for the guarantee of IP rights is getting louder by the day. Nigeria can only remain ambivalent and ignore these vociferous ululations to its peril. It therefore becomes very imperative for Nigeria to urgently ratify and domesticate the ILO Convention 169. Whilst the ratification and domestication of ILO 169 is not a be all, end all in the pursuit of IP rights protection in petroleum exploitation in Nigeria, it would be a significant step forward in the definite, institutional recognition, respect and protection of IP rights generally and specifically with regards to petroleum and natural resources development in the country.

112 113

Art. 17 & 18 Ibid. Nigeria has been a member of the ILO since 1960. 114 Nigeria has ratified a total of 38 ILO conventions (34 are still in force) till date.

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That being said, Nigeria also needs to respect the provisions of the ACHPR Act on peoples rights and domesticate other relevant international treaties which it has ratified so as to give them the full force of law municipally and not merely have them as beatific formal ratifications.

Civil and political rights as guaranteed under the 1999 Constitution must continue to be respected and given full judicial and institutional support. Furthermore, the Economic, Social and Cultural rights entrenched therein should be made justiciable, mandatorily respected by both Government and oil companies alike and capable of judicial enforcement. The Land Use Act, 1978 needs to be repealed, or amended at the least, to provide for the recognition and protection of IP rights to land. The Petroleum Industry Bill which seeks to repeal and replace the Petroleum Act and other allied legislations must recognize the right of IPs to freely dispose their natural resources. A comprehensive framework for industry transparency, public participation and consultation through Free, Prior, Informed Consent (FPIC) should be entrenched in Nigerias property, petroleum and environmental framework and complied with by all stakeholders. The Federal Government of Nigerias 2012 Gas Flaring Deadline must be taken seriously this time. The recently passed Local Content Act 2010 which mandates oil companies to employ a stipulated percentage of indigenous capacity must also be given bite. Nigerias legislative, regulatory and administrative framework on the above issues must be streamlined and harmonized to make for clarity, coherence and ease of enforcement. Government must respect and dedicatedly implement its laws. The pecuniary gains attachable to oil exploitation should not blindfold government from the damning consequences of the neglect, or worse still conspiracy against IP rights and protection. No one, no company, should be above the law.

Given the crucial role of a vibrant and articulate judiciary and regulatory system in safeguarding IP rights, these institutions need to be strengthened technically and financially and their independence guaranteed. The practitioners also need to develop the strength of character to safeguard the enforcement of these rights and muster the needed judicial and administrative fortitude to take drastic decisions against recalcitrant petroleum operators.
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Petroleum yields enormous income for the Nigerian federation, the goose that lays the golden eggs should be given a true sense of belonging and adequately catered for. In this connection, this paper recommends an upward review of the resource revenue sharing formula for the IPs of the Niger Delta from its present minuscule 13%. In the same vein, the Federal Government must resuscitate the war against institutional corruption, especially at the State and Local Government levels where the little revenue, been allocated hitherto to the IPs are being recklessly squandered by shameless politicians and their cronies. Honest and transparent governance would ensure that this revenue is utilized for the benefits of the people. Government must also ensure that these IPs are provided with employment opportunities, adequate social and infrastructural amenities and granted fair political representation.

The recent setting up of a Sovereign Wealth Fund by the Nigerian government to retain, on a long-term, a chunk of the proceeds of petroleum exploitation, would be a sustainable way to preserve the rewards of petroleum exploitation for present and future generations even when exploitation activities have ceased, for according to the native American proverb; we do not inherit the planet from our ancestors but borrow it from our children.

Government must see the imperative to recognize, protect and promote IP rights in petroleum exploitation as a matter of utmost priority, knowing full well that the way it tackles petroleum exploitation/IP right issues will be indicative of how much it respects the human rights of its citizens.

Oil companies in Nigeria must quit their double standards and stop engaging in stark disregard for IP rights and other inhumane activities which they will never attempt in their home countries. They must carry out their operations in socially responsible ways, conduct appropriate social and environmental impact assessments and extensively and sincerely consult with IPs before and whilst undertaking petroleum activities. They must make adequate technical and financial provisions for decommissioning to cater for land & environmental rehabilitation at the end of petroleum exploitation, desist from further acts of or complicity in human rights abuse and live
23

up to their moral responsibility to respect the peoples rights. To do otherwise would be tantamount to sitting on a time bomb, which would someday explode on their faces.

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BIBLIOGRAPHY PRIMARY SOURCES Treaties, Conventions and Declarations African Charter on Human and Peoples Rights 21 ILM 58 (1982). Charter of the United Nations 1 UNTS XVI (1945). Child Rights Convention GA Res. 44/25 (1989). Convention against Torture GA Res. 39/46 (1984). Convention on Elimination of Discrimination against Women, 1249 UNTS 13 (1979). Convention on the Elimination of Racial Discrimination, 660 UNTS 195 (1966). International Covenant on Civil and Political Rights, UNGA Res. 2200A (XXI) 1966. International Covenant on Economic, Social and Cultural Rights, UNGA Res. 2200A (XXI) 1966. International Labour Organisation, Convention concerning the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries (ILO 107) 328 UNTS 247 (1957). International Labour Organisation, Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169) 28 ILM 1382 (1989). UN Conference on the Human Environment, Report of the United Nations Conference on Human Environment, UN Doc. A/CONF. 48/14/REV.1 and Corr. 1 (1972), reprinted in 11 ILM (1416) (1972). UN Conference on Environment and Development, Rio Declaration on Environment and Development UN Doc. A/Conf. 151/S/REV. 1 (1992), reprinted in 31 ILM 874 (1992). Universal Declaration of Human Rights, 10 December 1948 UN GA Res 217A (III), UN Doc A/810 71 (1948). UN Declaration on the Rights of Indigenous Peoples UNGA Res. 61/295 (2007). National Legislation and Policies African Charter of Human and Peoples Rights (Ratification and Enforcement) Act 1983, Cap A9 LFN 2004.
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Associated Gas Re-Injection Act Cap A2 LFN 2004. Constitution of the Federal Republic of Nigeria, 1999 Cap. C23 LFN 2004 Environment Impact Assessment Act 1988 Cap. E12 LFN 2004. Federal Environmental Protection Agency Act 1992 Cap. F10 LFN 2004. Federal Environmental Protection (Amendment) Decree No. 59, 1992. Land Use Act 1978 Cap. L5 LFN 2004. Miscellaneous Offence (Anti-Sabotage) Decree 1984. National Human Rights Commission Act 1995 Cap. N46 LFN 2004. Niger Delta Development Commission Act 2000 Cap. N86 LFN 2004. Nigerian National Environmental Policy, 1989 (updated in 1999). Oil Mineral Producing Areas Development Commission Decree No. 23 of 1992. Petroleum Act Cap. 1969 P10 LFN 2004. Petroleum (Drillings and Production) Regulations Act 1969 Cap 350 LFN 1990 P. 12766. Petroleum Production and Distribution (Anti-sabotage) Decree of 1975. Judicial Precedents Abiyoye v. Yakubu (1991) NWLR Pt. 130 SC. Archbishop Okogie v. AG of Lagos State, Nigeria (1981) 2 NCLR 337. Attorney General of the Federation v Attorney General of Abia State & others (No. 2) (2002) 6 NWLR (Pt. 764) 542 S.C. Bandua Mukti Morcha v Union of India [1984] AIR 1984 SC 802. Kichwa Peoples of the Sarayaku Cmty. & Its Members v. Ecuador, Case 167/03, Inter-Am. C.H.R., Report No. 62/04, OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 308 (2004). Lakanmi v. Attorney General, Western Nigeria (1970) 6 NSCC 143. Mabo v.Queensland 66 ALJR 408 (1992).
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Mahendra Pratap Singh v State of Orissa [1997] AIR 37. Maya Indigenous Cmty. of the Toledo Dist. v. Belize, Case 12.053, Inter-Am C.H.R., Report No. 40/04, OEA/Ser.L/V/II.122, doc. 5 rev. 1 at 727 (2004). Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2002) AILR 12. Ogugu v State (1994) 9 NWLR (Pt 366) 1. Okonkwo v. Okagbue (1994)12 SCNJ 89. Paramand Katra v Union of India [1989] AIR 1989 SC 2039: 1990 Cvi LJ 671. Sani Abacha and Ors v. Chief Gani Fawehinmi (2000) 6 NWLR 228. Seismograph Service v. Mark (1993) 7 NWLR (Pt. 304) 203. Shell v. Farrah (1995) 3 NWLR (Pt. 382) 148. Shell-BP V. Usoro (1960) SCNLR 121. Shell Petroleum Development Company v. Ijaw Aborigines of Bayelsa State 2006 (Unreported). Social and Economic Rights Action Center (SERAC) and Economic Rights Action Center for Economic and Social Rights (CESR) v. Nigeria, Communication 155/96 (2001). Umudje & Anor. v. Shell-BP (1975) 9-11 SC 155. Western Sahara ICJ case (1975). Wiwa v. Anderson 01 Civ. 1909. Wiwa v. Royal Dutch Petroleum 96 Civ. 8386. Wiwa v. Shell Petroleum Development Company U.S. App. LEXIS 11873(2d Cir.) 2009. Yakye Axa Indigenous Cmty. of the Enxet-Lengua People v. Paraguay, Case 12.313, Inter-Am C.H.R., Report No. 2/02, Doc. 5 rev. 1 at 387 (2002).

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