8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
1/63
Environmental Law and PetroleumExploration and Exploitation inAfrican-Africa
Rugemeleza Nshala:
Lawyers Environmental Act ionTeam(LEAT)Dar es Salaam, Tanzania
Presented at Revenue Watch InsituteTraining Whitesands Dar es SalaamTanzania
July 26 2013
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
2/63
What is Environment?
Environment in the modern context of sustainable
development encompasses the physical and social
factors of the surroundings of human beings and
includes land, water, atmosphere, climate, sound,
odour, taste, energy, waste management, coastal
and marine pollution, the biological factors of
animals and plants, as well as cultural values,historical sites, and monuments and aesthetics.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
3/63
What is Environmental Law?
Environmental law can be generally definedas the body of law that contains elements tocontrol the human impact on the Earth andon public health.
As for any law, environmental law containsstandards and required conduct on humansthe violation of which attracts a punishmentby the government through fines,imprisonment or compensation.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
4/63
Branches of Environmental Law
There is national and international environmentallaw.
National Environmental Law comprises of lawspassed in nation covering different facets of theenvironment including wildlife, water, land, and airquality management, pollution control et cetera.
Countries have passed sectoral legislation and
concretized them by passing frameworkenvironmental legislation as umbrella environmentallegislation which other sectoral legislation mustabide or be in conformity with..
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
5/63
International Environmental Law
International environmental law is a law
developed between sovereign states todevelop standards at the international level
and provide obligations for states including
regulating their behavior in international
relations in environmental related matters.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
6/63
Sources of Environmental Law
Article 38 (1) of the Statute of the International Court of Justiceprovides four sources of International Enviro Law as:
a. international conventions, whether general or particular,establishing rules expressly recognized by the contestingstates;
b. international custom, as evidence of a general practiceaccepted as law;
c. the general principles of law recognized by civilized nations;
d. judicial decisions and the teachings of the most highly qualifiedpublicists of the various nations, as subsidiary means for thedetermination of rules of law.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
7/63
National Approaches to Environmental
Management
Constitutions;
Sectoral laws; Framework environmental laws;
Comprehensive codification ofenvironmental laws;
Penal codes; Implementation of international
environmental legal instruments.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
8/63
Environmental Management Principles
informing Environmental Law
There many environmental management principles
but most important ones are:
Sustainable development; thus developmental
initiatives must be informed by environmental
consideration;
Inter- generational and intra-generational equity;
Transparency, Public participation and Access to
Information;
Responsibility for Trans-boundary harm;
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
9/63
Principles ctd.
Environmental Impact Assessment (EIA)
Polluter pays;
Cooperation and Common but DifferentiatedResponsibilities;
Precautionary Principle;
Access and Benefit Sharing regarding Natural
Resources; Enactment of Strong Environmental Laws with
attendant Strong and Efficient Enforcing Agencies.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
10/63
Environmental Treaties
According to Article 2(1) (a) of the Vienna Convention on theLaw of Treaties a treaty is defined as an internationalagreement concluded between states in written form and
governed by international law, whether embodied in a singleinstrument or in two or more related instruments and whateverits particular designation.
There are more than 500 conventions, treaties, and protocols governingdifferent facets of the environment. A few are mentioned here i.e.
The Convention on Trade on Endangered Species of Wild Flora and Fauna(CITES) passed in 1973 one year After Stockholm Conference;
The United Nations Convention on the Law of the Sea (UNCLOS) of 1982;
The Basel Convention on Control of Transboundary Movement of HazardousWastes and their Disposal: dumping of toxic substances in Ivory Coast in 2005;
The Ramsar Convention on Protection of Wetlands
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
11/63
Treaties ctd
The Convention on Trade on Endangered Species of
Wild Flora and Fauna (CITES) passed in 1973 one
year After Stockholm Conference;
The United Nations Convention on the Law of the
Sea (UNCLOS) of 1982;
The Basel Convention on Control of Transboundary
Movement of Hazardous Wastes and their Disposal:dumping of toxic substances in Ivory Coast in 2005;
The Ramsar Convention on Protection of Wetlands
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
12/63
International Treaties ctd
United Nations Framework Convention on ClimateChange (UNFCC);
Convention on Biological Diversity The Stockholm Declaration of 1972; and
The Rio Declaration on Environment andDevelopment;
Bamako Convention on the Ban of Imports intoAfrica and the Control of Transboundary Movementand Management of Hazardous Wastes within
Africa.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
13/63
Development of Environmental Law
Development of Environmental Law spearheaded by strongindividuals and CSOs. The publication of Silent Spring byRachel Carson in 1962 warned the world of the dangers posedby the use of DDT;
The 1970 Earth Day March galvanized the U.S. Govt intoforming EPA.
The adoption of EIA by courts was a result civil societyorganizations filing of law suits against polluters in US courts;
The banning of lead in gasoline also a result of academics andCSOs efforts;
The passage of Aarhus Convention in Europe also attributed toCSOs efforts
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
14/63
The Interface between Petroleum and
Environmental Laws
Many African countries have enactedpetroleum exploration and exploitation lawseven where there hasnt been any discoveryof oil.
In participating countries Nigeria has thePetroleum Act of 1969 has amended; Ghana:the Petroleum (Exploration and Production)Law of 1984; Petroleum (Exploration andProduction) Act of 1985
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
15/63
Governmental Powers on Petroleum
In all these countries petroleum like other
non-renewable resources has been declaredto be state property;
Oil exploration and production are supposed
to be sanctioned by the state; a license is
issued by a respective governmental body orthe minister responsible with Energy or
Petroleum Affairs
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
16/63
What about Uganda?
In Uganda the Minister issues the license
and attaches the necessary conditions thatthe developer is supposed to observe.
There is a catch though: The Minister may
enter into an agreement with the developer
and this may whittle down some of theconditions including revenue, together with
other rights of the people
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
17/63
Any environmental requirements?
In Mozambique we find the same but the developer issupposed to observe environmental law and Good Oilfieldpractices.
The Law requires the undertaking of EIA for all oil explorationand exploitation activities in Mozambique;
By contrast the Nigerian Petroleum and the Ugandan laws donot make any mention on environmental requirements save thatthe developer in Uganda the developer is supposed to statemeasures he or she is going to undertake to protect the
environment. In Nigeria the Minister is empowered to make regulations on
water and atmospheric pollution: note not environmentalpollution as a whole
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
18/63
What about Ghana?
In Ghana petroleum exploration and exploitation is
supposed to adhere to best international practices;
The Petroleum Exploration and Production Law 1984
requires compensation to the owner of land for the
disturbance and damage caused due to oil related
activities but compensation results out of the
negotiations between the company and the landowner
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
19/63
Petroleum licenses
Upon grant of a license the grantee is supposed to
observe the conditions attached to the license
including: Good Oilfield Practice
Good Oilfield Practices: all those practices that are
generally accepted in the international Petroleum
industry as good, safe, environmentally friendly,
economic and efficient in exploring for and producingPetroleum
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
20/63
Ghana ctd
The Minister is empowered to enter into agreement with thedeveloper on oil exploration and exploitation.
There is a danger as the terms might be quite burdensome tothe country as many government officials are not well-versedwith oil production issues and things to guard against.
The Agreements must be ratified by parliament;
But one should know these agreements provide forInternational Arbitration which is costly to poor countries;
The law however allows the renegotiation in case of materialchange of circumstances as they existed at the time of enteringinto it.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
21/63
Environmental requirements
Access rights of the land occupiers like water and
grazing must be respected;
EIA required but at the discretion of the Minister;
But the Minister must impose environmental
protection requirements as part of the license;
The law demands for the creation of Petroleum
Environmental Protection Fund
Environmental damage must be removed by
reinstatement, rehabilitation and clean-up measures
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
22/63
Requirements ctd
Loss of livelihoods;
Water, air or soil contamination; Damage to biodiversity;
Economic distribution including agriculture
production.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
23/63
Dispute settlement
Between nationals and foreign companiesthe matter can be solved administratively,
judicially and by mediation;
Between the States and companies for mostpart international arbitration under ICSID,UNCITRAL and ICC
International arbitration should be resisted;national courts must be empowered todecide these cases
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
24/63
Are Petroleum agencies powers
absolute?
Not at all. As far as environmental matters are
concerned any permit issued to oil
companies/developer an EIA certificate is a must.
Section 20 of the Nigerian Constitution demands
assiduous utilization of the natural resources.
These countries have enacted framework
environmental legislation that govern environmentalmatters
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
25/63
Environmental laws
In Uganda: The National EnvironmentalStatute of 1995
Mozambique: Environmental Act of 1997
Ghana: The EPA Act of 1994
Nigeria many laws are in place including:
The Federal Environmental Protection Act of1988 and also the EIA Act of 1992
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
26/63
Likewise
These powers are subject to constitutional
rights like the right to property, livelihood
Due process i.e. the right to be heard and
defend oneself;
Adequate, effective and prompt
compensation
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
27/63
In short
While Petroleum ministries have powers toregulate petroleum affairs in their respective
countries, those powers are subject to theobservance of the rights contained in theConstitutions, other laws like fisheries, land,water and environmental laws.
No oil exploration and exploitation are to takeplace where they are deemed to poseserious or significant environmental damage
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
28/63
Rights of Members of the Public
Take part in the EIA Process;
Right to demand compensation for loss of
livelihoods, land, fishing rights Demand benefit sharing provisions in the
agreements including shares in the company orcertain percentage of revenue, employment andother attendant rights;
Law suits against the company and the government; Naming and shaming of companies doing bad
things;
Monitor the oil companies operations
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
29/63
EIA
Environmental Impact Assessments (EIA)provides a tool that would assist in the
anticipation and minimization ofdevelopments negative effects. Undertakenin the early stages of project planning anddesign, EIA could help shape development in
a manner that best suits the localenvironment and is most responsive tohuman needs.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
30/63
Origins of EIA
The passage of the National EnvironmentalPolicy Act (NEPA) by the U.S. Congress
gave the required impetus in dealing withenvironmental pollution from rapidindustrialization, agriculture, populationgrowth and technological growth.
EIA is informed by the fact that naturalresources are finite and must be expended inassiduous manner
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
31/63
The aims of EIA
EIA is employed to assess the wouldenvironmental social and economic impact of
the proposed project. When carried out toinclude the consequences of the programs,policy and plans it is then becomes aStrategic Impact Assessment (SEA).
EIA also aims at affording the public anopportunity to participate in the projectformulation, assessment and review.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
32/63
We can thus say:
EIA aims at:
Integration of environmental issues intoplanning and decision-making;
Anticipation and minimization of
environmental damage; and
Public participation in decision-making and
environmental conservation.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
33/63
Acceptance of the EIA
Many Conventions and Treaties now
recognize and call for the performance of
EIAs on all projects with significant
environmental impact
They include the Convention of Biological
Diversity of 1992; UNCLOS and mostfamously Rio Declaration whose principle 17
states:
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
34/63
Principle 17
Environmental impact assessment, as anational instrument, shall be undertaken for
proposed activities that are likely to have asignificant adverse impact on theenvironment and are subject to a decision ofa competent national authority.
Thus EIA calls for the no-harm approach toyour neighbor or another country as wasemphasized by customary international law.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
35/63
EIA steps
Screening to determine whether a certain project should besubject to EIA;
Scoping to decide which impacts should be taken into accountby EIA;
Impact analysis to evaluate the type of likely environmentalimpacts;
Mitigation and impact management to develop measures toavoid, reduce or compensate for negative environmental
effects; Reporting to catalogue and track the results of EIA for decision
makers and other interested parties, including the public;
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
36/63
EIA Steps Ctd.
Review of EIA quality to examine whether the EIAreport includes all of the information required by
decision makers and the public; Decision making to approve or reject project
proposals and, if needed, to set the terms andconditions under which a certain project canproceed; and
Implementation and follow-up to ascertain whetherthe project is proceeding as planned, monitor theeffects of the project, and take actions to mitigateproblems that arise during the course of the project.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
37/63
Are EIAs required in participating
countries?
In Uganda, The National Environmental Statute of1995; the Environmental Impact Assessment
Regulations of 1998 and the Environmental ImpactAssessment Public Hearing Guidelines of 1999;
In Nigeria EIA is required. EIA Act of 1992 requiresthe consideration of environmental impacts onprivate and public projects. The mandate also foundsits source from Section 20 of the NigerianConstitution. In short Nigeria has a lot ofenvironmental laws but the problems is onimplementation due to lack of political will andinstitutional weaknesses.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
38/63
EIA required
In Ghana the Environmental Protection Act of
1994 empowered the EPA to demand an EIA
for any activity which has adverse
environmental impacts. When an EIA has
been demanded the responsible
governmental agency is not supposed toissue license until its receives EPAs nod
that the EIA demand has been complied with.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
39/63
EIA requirements
In Uganda the National EnvironmentalStatute, 1995 demands an EIA for, inter alia,
petroleum exploration. The EIA is to becarried out if the project is likely, may or willhave significant impact on the environment.
The developer is supposed to undertake the
EIA by experts registered by NEMA.
EIA is likewise required in Zambia andMozambique
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
40/63
Things that must be observed in the
EIA process
Public participation in the entire process;
The project materials are supposed to be in a
language that is easily understood by ordinarymembers of the public;
Project materials are supposed to be availed to thepublic on time so as to ensure that members of thepublic make informed contributions;
Legal rights of members of the public i.e. right toland, property, livelihood, benefit sharing, accessrights, right to adequate, effective and promptcompensation;
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
41/63
Things to monitor ctd
Incorporation and consideration of the members of
the public views in the EIS;
The Review process: Is the Environmental Agency
independent and competent enough to review the
EIS and make an informed decision?
Right to challenge the EIS administratively and
legally;
Monitoring mechanisms arising out of EMP;
Rehabilitation bond and measures
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
42/63
Tools for Environmental Law
Enforcement in the Petroleum industry
What are citizens rights in Petroleum
exploiting countries?
Citizens enjoy all basic rights enshrined in
the constitutions like the Bill of Rights e.g.
equality before the law, right to life, right to
clean and healthy environment; right toproperty; association, expression; right to
take part in decision-making processes
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
43/63
Rights ctd
Right to employment, access to justice,
among others
They are supposed to live in a country
governed by the rule of law and with
independent judiciary;
They have right to representation and right tohold to account their representatives;
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
44/63
How to protect these rights be
protected?
Take part in all environmental making
decision-processes;
Demand access to documents pertaining to
petroleum exploration and exploitation
application processes;
Take part in EIA processes from thebeginning to the end and make informed
contributions
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
45/63
How to protect rights?
Challenge and review EIS to ensure that theenvironmental rights of the people are
respected; Demand to take part in the monitoring of
petroleum exploration and exploitationprocesses;
Bring lawsuits;
Peaceful civil protests
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
46/63
What should
Expose bad practices of foreign oil
companies nationally and internationally
Remember Petroleum companies purport to
attach much value to their name and brands
in order to protect theirgood image so
shaming them is a powerful fighting tool; Hold Govt environmental bodies accountable
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
47/63
And more importantly
Comprehensive and sustaining community
mobilization and environmental rights
awareness raising campaign.
In short organize,organizeand let me say it
again, ORGANIZE.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
48/63
Are Environmental Laws strong
enough?
Laws are strong enough as they do demandthe carrying out of EIA and prohibits the
issuance of the license unless environmentalprotection measures have been put in place.
So?
The most important question is whetherEnvironmental Agencies are strong andindependent enough to enforce these laws?
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
49/63
The Answer is
Most of environmental agencies are very weak, lack
the required independence and lack staff and
resources to enforce these laws. They are easy to manipulate and see themselves as
governmental bodies required to give effect to
government wishes;
The have countrys mandate yet they are based incapital cities and are unable to reach and monitor
petroleum activities in the entire country
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
50/63
So what should we do?
Civil Society involvement in enforcement of
environmental laws and rights is key.
CSOs must step in to demand accountability
and monitor enviro agencies and oil
companies activities;
Must bring lawsuits against enviro agenciesand oil companies for environmental pollution
or against any exploitation
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
51/63
What else?
Forge relationships with ParliamentaryEnvironmental Committees to hold to account and
monitor environmental agencies and oil companies; Demand public hearings by the Parliamentary
Environmental Committees on environmental issuesrelating to petroleum activities ;
Demand institutional strengthening andindependence of environmental agencies to ensurethat they assume and perform their tasks as per thelaws;
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
52/63
What about conflict of laws?
Amendment and harmonization of laws is in order toensure that petroleum laws are in harmony withenvironmental laws;
Laws must state clearly that no license on oilexploitation is to take place contrary toenvironmental laws and that pollution of theenvironment is sufficient ground to end petroleumactivities;
Environmental laws are supposed to supersede anyother laws as far as environmental management isconcerned
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
53/63
What should be done?
Institutional mandates and rivalries must be ironed out.
Petroleum agencies must be required to abide withenvironmental laws and must liaise and cooperate withenvironmental agencies in petroleum monitoring and auditingprocesses;
Petroleum laws must respect property and citizenry rightsincluding right to fair and adequate compensation;
Thus presidential eminent powers must be sparingly applied
and must in full accord with citizenry constitutional rights
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
54/63
CSOs role
Good understanding of basic rights and dutiesenshrined in the constitution;
Good understanding of environmental and petroleumlaws;
Environmental and Citizenry Rights AwarenessRaising;
Enforce environmental laws administratively,
politically, and through lawsuits; Monitoring oil companies;
Exposing bad practices and laxities in environmentalmanagement and protection
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
55/63
What should ctd
Build alliances and networks with other
organizations nationally and internationally
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
56/63
Best Practices
In Ecuador we have Pablo Fajardo Mendoza
a lawyer who has taken on Chevron against
environmental pollution done by its
predecessor Texaco
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
57/63
Pablo Mendoza-Goldman
Environmental Award Winner 2007
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
58/63
Texaco case
According to the plaintiffs, beginning in 1964 and through 1990,Texaco dumped nearly 17 million gallons of crude oil and 20billion gallons of drilling wastewater directly into the Ecuadorian
Amazon. Allegedly suffering from the health effects of thepollution, the region's inhabitants are demanding a completecleanup in potentially the largest environmental lawsuit everfiled in the world. Yanza co-founded the Amazon Defense Frontto organize 30,000 inhabitants of the northern Ecuadorian
Amazon in a class-action lawsuit against Texaco, which wasacquired by Chevron in 2001. The lead lawyer, Pablo Fajardo,a resident of one of the affected communities, has become thepublic voice of the plaintiffs.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
59/63
MC MEHTA-INDIA
Mr Mehta is probably the only Supreme Court lawyerto have taken up legal cudgels with the polluting
Indian Industries and come out victorious. Adedicated, fearless and extremely honest man, hepursues his goals with single-minded devotion. Hehas been conferred with several prestigious awards.Some of these are the Governor's Gold Medal, the
Goldman Environmental Prize, considered onalternative Noble Prize in USA and Europe, the UN'sGlobal 500 Award for 1993 and above all theMagsaysay Award for 1997."
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
60/63
Ken Saro-Wiwa
Who can forget this African hero who laid
down his life for the rights of the Ogoni
people
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
61/63
Maathai-Wangari-Kenya
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
62/63
What About you?
You are the hero if you so choose to make a
real difference and tap into your talents;
Or you may retreat into safe corners of
cowardice and hypocrisy.
The choice is yours but for sure you will one
day have to account.
8/22/2019 Environmental Law and Petroleum Exploration and Production in Afica
63/63
After All these what else?
ASANTENI SANA&
KWAHERINI