THE NECESSITY FOR A STRONGER NOSDRA By Emmanuel Onwubiko

Tuesday 13th November 2012 will linger for a long time in the memory of all the real lovers of the environment in Nigeria and for all those who have rightly shown their displeasure at the reckless abandon with which multinational crude oil exploration companies in the Crude Oil rich Niger Delta Region abuse our pristine environment through crude oil spillages and gas flares. On this day, the Senate Committee on Environment and Ecology currently headed by the immediate past Governor of Kwara State Dr. Bukola Saraki, a medical doctor, summoned the courage to host the first ever stakeholders national forum and public hearing on a proposal to amend the enabling Act setting up the National Oil spill Detection and Response Agency [NOSDRA] with the aim of further empowering the body to combat these wanton destruction of the environment by these serial abusers. Incidentally, it was the same Dr. Bukola Saraki who vigorously campaigned for the probe of the huge petroleum subsidy claims that the Executive Arm of Government has wasted in the last one year which heralded the setting up of the Federal House of Representatives committee on the disappearance of huge public fund and also the Presidential probe panel set up by the Federal Ministry of Finance which uncovered that nearly N1 trillion Naira were stolen from the national treasury by some crude petroleum importers who claimed several tons of public fund for products they never supplied or intended to supply.

 

When therefore we received the invitation to attend this historic public hearing on strategies for further strengthening NOSDRA from the Senate Committee headed by this same Dr. Saraki, we in the civil society community in Abuja ad around the country decided to participated actively just as the HUMAN Rights Writers’ Association of Nigeria (HURIWA), a registered civil society group with well over one thousand members drawn from all parts of the country endorsed the move by the senate of the Federal Republic of Nigeria and by extension the National Assembly, to amend the enabling Act setting up the National Oil Spill Detection and Response Agency (Establishment Act) of 2006 to reflect the realities of our time and to empower the body to protect our environment. The Transparency Center Network, another registered anti-graft Non-Governmental Organization also submitted well researched paper endorsing the move by the Senate to further give more legal teeth to NOSDRA to not only bark at the serial abusers of the Nigerian environment but to bite them with the viciousness that would compel a change of heart on their operational modalities to comply with international best practices and respect the environmental rights of their host communities.

 

Our decision to so participate actively was guided by our awareness that crude oil spill has consistently occupied the front burner as the most disturbing environmental problem in the oil rich but heavily neglected Niger Delta region of Nigeria.

Once we were informed of this proposed amendment, we spent the better part of last week asking some senior high school students if they are conversant with the National Oil Spill Detection and Response Agency [NOSDRA] and majority of our respondents said they have heard about the activities of this agency charged with the duty of policing oil spill in Nigeria but they also wondered why oil pollution has continued making it necessary for some fishermen from the crude oil producing community in Niger Delta to proceed to a Dutch Court room to challenge Shell Petroleum for damaging their environment and livelihood through oil spills. 

 

This Government agency according to these respondents needs to more actively carry out advocacy activities on their key mandates because of the indisputable fact that crude oil spill is a major environmental issue afflicting most oil bearing communities. The respondents supported the decision to amend the enabling Act to give more powers and functions to the agency.

 

The Nigerian federal government in line with global best practices has established the National oil spill Detection and Response Agency (NOSDRA) under the National oil spill Detection and Response Agency (establishment) Act of 2006 to handle the critical environmental consequences of oil spill and to enforce relevant laws guiding against oil spillage in the oil producing communities. 

 

As human Rights practitioners we are of the considered position that the President Goodluck Jonathan administration is therefore expected to be in the vanguard of the advocacy for the adequate funding and comprehensive legal empowerment of NOSDRA so that these disturbing cases of oil spills in the oil producing communities are effectively tackled.

 

We have independently verified from different documented sources that since its establishment, the body has effectively discharged the fundamental mandates embodied in the enabling Act which are to among others establish a viable national operational organization that ensures a safe, timely, effective and appropriate response to major or disastrous oil pollution; Identify high-risk areas as well as priority areas for protection and clean up and establish the mechanism to monitor and assist or where expedient direct the response, including the capacity to mobilize the necessary resources to save lives, protect threatened environment, and clean up to the best practical extent of the impacted site.

 

Government is statutorily obliged by section 20 of the constitution to protect the environment from oil spill. Section 20 of the Constitution provides that “The State SHALL protect and improve the environment and safeguard the water, air, and land, forest and wild life of Nigeria”. 

 

Conversely, the international convention on civil liability for oil pollution Damage (1992) and the international oil pollution compensation funds convention (IOPC), [1992] are major global legal framework that specifically prescribes measures on how to ensure environment that is relatively free of oil spill.

Article one of the general provisions of the International Convention on oil pollution, preparedness, Response and co-operation of 1990 states that “parties undertake, individually or jointly, to take all appropriate measures in accordance with the provision of this convention and the Annex thereto to prepare for and respond to an oil pollution incident”.

But another lingering question is whether the National Assembly in compliance with section 12 of the constitution of the Federal Republic of Nigeria (of 1999 as amended) domesticated this very important international convention.

 

Senator I. S. Martyns Yellowe one time chairman of the Senate committee on the environment, wrote thus; “Domestication of these conventions is a sine qua non for Nigeria in its capacity of a leading oil producing and oil transporting country to avail her of direct access to huge compensations from the international oil pollution compensation Fund in case of damages caused by spillages from oil tankers”.

Several years after Senator Martyns-Yellowe made the above comment, it is unclear if the Nigerian Government has indeed domesticated the two global anti-oil spill conventions. If this has not been done then this is a better time to so domesticate this international body of law to safeguard our environment the more. 

 

To therefore contemplate any measure outside of strengthening NOSDRA charged with the onerous duty of protecting the environment from oil spill is a complete anti-climax from the general expectation of the good people of Nigeria. Nigerian Government must give NOSDRA the legal teeth to more effectively combat oil spill and to carry out media campaign in the same way that such agencies like National Agency for Food and Drug Regulation and control [NAFDAC] always do because of enhanced financial lifeline. What the Senate has decided to do by amending the enabling Act is a step in the right direction and posterity will forever remain appreciative of this noble and patriotic step.

 

After extensively perusing the draft Bill for an Act to amend the National Oil Spill Detection and Response Agency, HURIWA hereby supports the move to further strengthen the powers given to this agency to combat the unprecedented rate of oil pollution in Nigeria.

 

As stakeholders in the organized civil society community in Nigeria in the last two decades, we are aware that over the years the international maritime organization (Imo) and the United Nations Environmental Programme have been active in promoting regional agreements, aimed at the developing countries ability to deal with a major marine pollution emergency. 

 

We know also that the international convention on oil pollution preparedness, Response and Cooperation (OPRC Convention) in general terms requires governments and industry to work together to promote active regional agreements aimed at the developing countries ability to deal with major marine pollution emergency.

Writing under the general theme of oil spill management in developing nations, Moller and Santer suggest that there is a widespread preoccupation with specialized equipment, it is often forgotten that successful oil spill response is primarily dependent on a realistic attitude and basic organization. 

 

What is clear from the above statement by those experts is that the establishment of the National Oil Pollution Management Agency in Nigeria as Contemplated in the proposed amendment of the enabling Act setting up NOSDRA is imperative and is indeed an idea whose time has come. There are three quick comments we made on the proposed bill which we have endorsed and these observations are that the proposed re-designation of the name from National Oil Spill detection and Response Agency to National Oil Pollution Management Agency is very scientific and all encompassing and therefore should be given positive consideration.

 

Secondly, We acknowledge the beauty of the new sub-section 2 which is an amendment of section 1 of the principal Act to now read as follows;“There is established an Agency to be known as the National Oil Pollution Management Agency with the responsibility to prevent, detect, minimize and respond to all oil Spillages and pollution as well as gas flaring and leakages and other hazardous and obnoxious substances in the petroleum sector, coordinate private sector participation in oil pollution management, have access to oil spillage liability Trust Fund as set up by law” and thirdly In section 8(d) we are of the opinion that the word ‘God’ be substituted with the term “natural means” because our members believe that God is infinitely good and therefore cannot cause harm to the environment that is the work of His hands. It should be reframed thus; (“d) “for any onshore facility and/or a deep-water port not more than N15, 000,000,000 provided that a party shall not be held liable in damage for damages if the responsible party shows the spill was caused solely by an act of (Nature) not (God), an Act of war, or an act or omission of a third party”. 

 

We support section 30 of the proposed amendment and hereby urge the senate and the National Assembly to give Nigerians a strong, independent and corrupt free anti-oil spill management agency that would be the pride of the nation. But a fundamental lacuna in the new bill is the non-mention of the role of the civil society and the media in creating awareness on oil spills.

 

Civil society organizations and the media ought to be provided for in the proposed Bill as a way of bringing the larger society and giving ownership of the process to the Nigerian public. The new agency must be empowered and endowed with the resources to wage aggressive media and advocacy campaign on crude oil pollutions.

 

Transparency Center Network headed by Umar Farouk also told the Senate panel that there is a strong sentiment in favour of strengthening the National Oil Spill Detection and Response Agency Act as a means of enhancing its efficiency and ability to effectively sanction offenders. This would require an amendment to several sections of the Agency Act (No. 15 of 2006) oil Spill, Recovery, Clean up, Remediation and Damage Assessment Regulations, 2011. Firstly there is need to amend the title of the Agency to be redesigned as the National Oil Pollution Management Agency.

 

Oil Spill in Nigeria particularly in the Oil Producing Communities is constant like several Spills across the World. Sadly, in our own case International Oil Exploration companies that deliberately caused Oil Spill with impunity are neither criminalized nor indemnified. Therefore, it is imperative for the Amendment Act being proposed to address and accommodate the need for outright criminalization of spill related negligence being perpetuated by the Oil companies deliberately. Transparency Centre Network, is in specific terms aligning with the proposed amendment. Punishment should be use as a tool of deterrence in whatever form to discourage abuses by oil multinationals during production both on shore and off shore or other sundry drilling related services in the Sector.

 

Oil Spill in Nigeria was dated back to 1958 when crude Oil was discovered in commercial quantity in the ancient community of Oloibiri in the Present Niger Delta Region. People in the region are professional fishermen and women. However, the tide of events began to change when oil was discovered in the region. At the initial stage, the community dwellers heaved a sigh of relief as they saw crude oil discovery in the region as gateway to Eldorado. 

 

Instead of economic relief, however, it was economic hardship as the per capital nose-dived with reported cases of water and air pollution, economic degradation, geometric rate of Unemployment, erosion, environment pollution, to mention but a few.

The unyielding posture of the oil producing companies in the past was one of the factors responsible for the proposed amendment being canvassed to ensure compliance with protocols of best practices and entranced standards accepted internationally. The companies should be compelled by law and be held liable for any form of oil spill recorded in any part of the Country.

The law should emphasize the substance of spill in every location, rather than technicalities as many cases being undermined by the oil companies on the latter ground. 

 

Clearly, there is a preponderance of support for NOSDRA to be empowered to fight these multinational oil companies to respect human rights and environmental rights provisions in their operations in line with global best practices. Senator Saraki and his fellow legislators must not allow the blackmail and/or inducement from the rich oil companies to fail to achieve this historic assignment and give Nigeria a stronger, vibrant and proactive NOSDRA to police oil spills and save our environment.

 

 

* Emmanuel Onwubiko, Head, HUMAN RIGHTS WRITERS’ ASSOCIATION OF NIGERIA, blogs @www.huriwa.blogspot.com.

 

14/11/2012