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V. THE ENVIRONMENT

The Niger Delta is one of the world’s largest wetlands, and the largest in Africa: it encompasses over 20,000 square kilometers. It is a vast floodplain built up by the accumulation of centuries of silt washed down the Niger and Benue Rivers, composed of four main ecological zones—coastal barrier islands, mangroves, fresh water swamp forests, and lowland rainforests—whose boundaries vary according to the patterns of seasonal flooding. The mangrove forest of Nigeria is the third largest in the world and the largest in Africa; over 60 percent of this mangrove, or 6,000 square kilometers, is found in the Niger Delta. The freshwater swamp forests of the delta reach 11,700 square kilometers and are the most extensive in west and central Africa.87 The Niger Delta region has the high biodiversity characteristic of extensive swamp and forest areas, with many unique species of plants and animals.

The high rainfall in southern Nigeria in the rainy season leads to regular inundation of the low, poorly drained terrain of the Niger Delta, and an ecosystem characterized by the ebb and flow of water. Over the last few decades, however, the building of dams along the Niger and Benue Rivers and their tributaries has significantly reduced sedimentation and seasonal flooding in the delta. Coupled with riverbank and coastal erosion, it is estimated that, if it continued at a constant rate, the result of diminished siltation in the delta would be the loss of about 40 percent of the inhabited land in the delta within thirty years.88 At the same time, since the construction of the dams, large numbers of people have settled in areas previously subject to extensive flooding; yet the progressive silting of the dams themselves, due to lack of maintenance, has meant that floods have begun to return to pre-dam levels, periodically inundating newly inhabited and cultivated areas.

Nigeria’s mangrove forest is still relatively intact: an estimated 5 to 10 percent has been lost as a result of settlement or oil activities.89 Freshwater swamp forests and forests on the barrier islands at the seaward edge of the delta are threatened by commercial logging, agriculture and settlements, but are still extensive. The lowland rainforest, on the other hand, has virtually gone: the zone it previously occupied covers about 7,400 square kilometers of the Niger Delta, but most of this has been cleared for agriculture.90

The Framework of Nigerian Law on Oil and the Environment

The framework for oil operations in Nigeria is set by the Petroleum Act (originally Decree No. 51 of 1969). Other relevant legislation includes the Oil in Navigable Waters Act (Decree No. 34 of 1968), the Oil Pipelines Act (Decree No. 31 of 1956), the Associated Gas (Reinjection) Act of 1979, and the Petroleum (Drilling and Production) Regulations of 1969, made under the Petroleum Act. From 1988, the Federal Environmental Protection Agency Act (Decree No. 58 of 1988) vested the authority to issue standards for water, air, and land quality in a Federal Environmental Protection Agency (FEPA), and regulations made by FEPA under the decree govern environmental standards in the oil and other industries. The Department of Petroleum Resources (DPR) has also issued a set of Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (1991), which overlap with and in some cases differ from those issued by FEPA. For the most part, the specific standards set are comparable to those in force in Europe or the U.S.

Nigerian law provides that “all minerals, mineral oils and natural gas” are the property of the federal government.91 Accordingly, the Petroleum Act requires a license to be obtained from the Ministry of Petroleum Resources before any oil operation—prospecting, exploration, drilling, production, storage, refining, or transportation—is commenced. Only a Nigerian citizen or a company incorporated in Nigeria may apply for such a license. The minister of petroleum resources has general supervisory powers over oil company activities, and may revoke a license under certain conditions, including if the operator fails to comply with “good oilfield practice.”92 Good oil field practice is not defined in the decree, but the Mineral Oils (Safety) Regulations of 1963, promulgated under the Mineral Oils Act (the predecessor to Petroleum Act), state that good oil field practice “shall be considered to be adequately covered by the appropriate current Institute of Petroleum Safety Codes, the American Petroleum Institute Codes, or the American Society of Mechanical Engineers Codes,” thus effectively binding oil companies to respect international standards in their operations in Nigeria.93 Licensees are responsible for all the actions of independent contractors carrying out work on their behalf.94

Oil companies are obliged to “adopt all practicable precautions including the provision of up-to-date equipment” to prevent pollution, and must take “prompt steps to control and, if possible, end it,” if pollution does occur.95 They must maintain all installations in good repair and condition in order to prevent “the escape or avoidable waste of petroleum” and to cause “as little damage as possible to the surface of the relevant area and to the trees, crops, buildings, structures and other properties thereon.”96 Oil companies are also required to comply with all local planning laws; they may not enter on any area held to be sacred or destroy any thing which is an object of veneration; and they must allow local inhabitants to have access, at their own risk, to roads constructed in their operating areas.97 Specific rules relating to compensation in the event of infringement of these and other requirements are described below.

The Environmental Impact Assessment Act (Decree No. 86 of 1992) requires an environmental impact assessment (EIA) to be carried out “where the extent, nature or location of a proposed project or activity is such that it is likely to significantly affect the environment.”98 The public and private sector are enjoined to give “prior consideration” to the environmental effects of any activity before itis embarked upon. An EIA is compulsory in certain cases, including oil and gas fields development and construction of oil refineries, some pipelines, and processing and storage facilities. The carrying out of EIAs is policed by the Federal Environmental Protection Agency, and by state environmental protection agencies.

As with the rest of the regulatory framework governing protection of the environment in Nigeria, there is in practice little enforcement of the requirements to carry out EIAs, either by FEPA or by the DPR’s regulatory arm, the Petroleum Inspectorate, and virtually no quality control over the assessments carried out. As one study concluded: “Most state and local government institutions involved in environmental resource management lack funding, trained staff, technical expertise, adequate information, analytical capability and other pre-requisites for implementing comprehensive policies and programmes. In the case of the oil industry, overlapping mandates and jurisdiction between FEPA and the DPR frequently contribute to counterproductive competition.”99

The Impact of Oil Operations on the Environment

The oil companies operating in Nigeria maintain that their activities are conducted to the highest environmental standards, and that the impact of oil on the environment of the delta is minimal. Shell, for example, has stated that “Shell Nigeria believes that most of the environmental problems are not the result of oil operations.”100 At the other extreme, Ken Saro-Wiwa, spokesperson for the Movement of the Survival of the Ogoni People (MOSOP) until he was hanged in November 1995, maintained that the environment in Ogoni has been “completely devastated by three decades of reckless oil exploitation or ecological warfare by Shell.... An ecological war is highly lethal, the more so as it is unconventional. It is omnicidal in effect. Human life, flora, fauna, the air, fall at its feet, and finally, the land itself dies.”101

Environmental groups accuse the oil companies of operating double standards; of allowing practices in Nigeria that would never be permitted in North America or Europe. The companies deny this, although Shell, for example, hasdefended the idea of national rather than international environmental standards. At the annual general meeting for the Shell group in London in May 1996, group chairman John Jennings stated that “the charge of ‘double standards’ is mistaken, because it is based on the notion that there is a single, ‘absolute environmental standard.’ ... As long as we continue to improve, varying standards are inevitable.” In the same vein, Group Managing Director CAJ Herkströter implied at the parallel annual meeting held in the Netherlands, that higher environmental standards could harm local economies: “Should we apply the higher-cost western standards, thus making the operation uncompetitive and depriving the local work force of jobs and the chance of development? Or should we adopt the prevailing legal standards at the site, while having clear plans to improve towards ‘best practice’ within a reasonable timeframe?”102

Shell admits, however, that its facilities in the delta are in need of upgrading: “Most of the facilities were constructed between the 1960s and early 1980s to the then prevailing standards. SPDC would not build them that way today.”103 Under pressure from international and national environmental groups, Shell has stated that it will finally bring its Nigerian operations (with the exception of gas flaring, for which see below) into line with Nigerian law—which in most respects refers to international standards—by the end of 1999.104

Unfortunately, the oil industry’s own evaluations of environmental damage, required for the production of EIAs, which might otherwise provide a useful basis for assessing environmental damage, are inadequate. According to a Dutch biologist formerly employed by SPDC for two years as head of environmental studies, for example: “There was/is a major problem with most of the environmental studies carried out in the Niger Delta, as they are carried out by Nigerian Universities or private consultancies, which have a generally low scientific level and little technical/industrial expertise.”105 A review of two of SPDC’s EIAs for pipeline projects conducted for the Body Shop International in 1994 concluded that, while “SPDC’s consultants have tried to be thorough,” the assessments were “lengthy, generally poorly constructed, and therefore it is difficult to envisage how they could either assist the Nigerian planning authorities in determining authorisation of the development, or enable SPDC employees in Nigeria to better manage their (potential) environmental impacts.” Furthermore, “there is little evidence that SPDC have been involved in the EIA process, that they acknowledge the potential impacts of their pipeline operations and that they have taken ownership of the mitigation measures necessary to minimise potential impacts.”106 The environmental impact assessment for the proposed liquefied natural gas project, carried out in 1995 on behalf of Nigeria LNG Ltd by SGS Environment Ltd, was also reviewed on behalf of Body Shop International. The review of the substantial document concluded that, although some sections of the report were of high quality, there were serious defects. Overall, “the Environmental Statements fall well short of what would be required in any developed country and do not allow the reader to make an informed judgement about the relative environmental benefits and costs of the scheme. It is normal practice to consider alternatives in an environmental assessment, but this has not been done. Significant issues have been overlooked or deferred to a later date.”107

As a result of deficiencies in such studies and the paucity of independent academic research, there is little publicly available hard information on the state of the environment in the delta or the impact that oil production has had. Problems identified include flooding and coastal erosion, sedimentation and siltation,degradation and depletion of water and coastal resources, land degradation, oil pollution, air pollution, land subsidence, biodiversity depletion, noise and light pollution, health problems, and low agricultural production, as well as socio-economic problems, lack of community participation, and weak or non-existent laws and regulations.108 Astonishingly, despite decades of oil exploration and production, neither the oil companies nor the Nigerian government have funded the scientific research that would allow an objective assessment of the damage caused by oil exploration and production.

Oil Spills and Hydrocarbon Pollution

According to the official estimates of the Nigerian National Petroleum Corporation (NNPC), based on the quantities reported by the operating companies, approximately 2,300 cubic meters of oil are spilled in 300 separate incidents annually. It can be safely assumed that, due to under-reporting, the real figure is substantially higher: conservative estimates place it at up to ten times higher.109 Statistics from the Department of Petroleum Resources indicate that between 1976 and 1996 a total of 4,835 incidents resulted in the spillage of at least 2,446,322 barrels (102.7 million U.S. gallons), of which an estimated 1,896,930 barrels (79.7 million U.S. gallons; 77 percent) were lost to the environment.110 Another calculation, based on oil industry sources, estimates that more than 1.07 million barrels (45 million U.S. gallons) of oil were spilled in Nigeria from 1960 to 1997.111 Nigeria’s largest spill was an offshore well blowout in January 1980, when at least 200,000 barrels of oil (8.4 million U.S. gallons), according to oilindustry sources, spewed into the Atlantic Ocean from a Texaco facility and destroyed 340 hectares of mangroves.112 DPR estimates were that more than 400,000 barrels (16.8 million U.S. gallons) were spilled in this incident.113 Mangrove forest is particularly vulnerable to oil spills, because the soil soaks up the oil like a sponge and re-releases it every rainy season.

Two serious spills took place in early 1998. On January 12, 1998, a major spill of more than 40,000 barrels of crude oil (1.7 million U.S. gallons) leaked from the pipeline linking Mobil’s Idoho platform with its Qua Iboe onshore terminal in Akwa Ibom State. Mobil estimated that more than 90 percent of the oil had dispersed or evaporated naturally, though the spill traveled “hundreds of kilometers farther than expected,” and some 500 barrels (21,000 U.S. gallons) washed ashore.114 By the end of February 1998, about 14,000 claims for compensation had been submitted from individuals or groups, totaling an estimated U.S.$100 million. About twenty communities, with a total population of about one million, were considered to be the worst hit, especially at the mouth of the Pennington River.115 Clean Nigeria Associates, an oil industry-funded spill-response cooperative, was mobilized to assist in containing the spill and dealing with its effects. However, shoreline cleanup had still not begun by January 28, because “staff had to train crew leaders and deliver appropriate gear to the sites,” and as late as March some sites were still visibly contaminated.116 Mobil had not responded to requests from Human Rights Watch for further information about this spill at the time of going to press. On March 27, 1998, a further spill of 20,000 barrels (840,000 U.S. gallons) took place from Shell’s Jones Creek flow station, Delta State, in thebrackish water of the mangrove forest, killing large numbers of fish. Shell identified the cause of the spill as “pipeline failure” and closed in 110,000 bpd of oil from eight flowstations. According to Shell, relief materials, including food and water, were provided to the communities affected at the time, and clean-up of the spill has been completed. As of September 1998, production at Jones Creek remained closed, pending the outcome of a technical investigation into the cause of the spill.117

As a result of the small size of the oilfields in the Niger Delta, there is an extensive network of pipelines between the fields, as well as numerous small networks of flowlines—the narrow diameter pipes that carry oil from wellheads to flowstations—allowing many opportunities for leaks. In onshore areas, most pipelines and flowlines are laid above ground. Many pipelines and flowlines are old and subject to corrosion: fifteen years is the estimated safe lifespan of a pipeline, but in numerous places in the delta pipelines aged twenty or twenty-five years can be found. SPDC stated that it completed a program for the replacement of older pipelines in swamp areas during 1996, and claimed that as a result the volume of spills due to corrosion was reduced by 36 percent compared to 1995. The company also stated that it planned to renew and bury 2,188 kilometers of lines by the end of 1998, and that all would by then be buried.118 Burial still requires clearing of the vegetation above the line, and though it reduces the chances of pollution through sabotage, it also makes leak detection more difficult.

DPR regulations require the body responsible for a spill to clean the site and restore it to its original state so far as possible. Soil at a spill site on land must contain no more than thirty parts per million (ppm) of oil after six months. SPDC official policy is that “All hydrocarbon and chemical spills in the vicinity of the company’s operations shall be cleaned up in a timely and efficient manner.”119 According to Shell, “All spills are investigated.” The company starts with “an immediate visit [to the] site to locate the source of the leakage and to stop it. This is followed with the initiation of clean-up actions.”120 However, in some cases it is clear that land affected by spills is not properly or promptly rehabilitated. At Kolo Creek flow station, a spill that Shell alleged was caused by sabotage occurredin July 1997, and was cleaned by putting contaminated soil into pits; one year later, during flood season, the community believed that a new spill had taken place when this oil was released back into the water.121 In Aleibiri, Bayelsa State, community members alleged in August 1997 that a spill dating from March 1997 had not yet been cleaned up. SPDC, which stated that the spill was caused by sabotage (a claim contested by local residents), said that the delay had been “because the community prevented access to the site to determine the cause of the spill and to clamp the hole,” demanding “payments to appease their deities, relief materials and immediate cash compensation,” while “ethnic clashes between Ijaws and Itsekiris in April, May and June caused further delay,” because, during the Warri crisis, “SPDC restricted operations in the Western Division to essential activities to minimize movements on the water and the risk of hijack and further hostage-taking.”122 Local activists contest this explanation, saying that the violence associated with the Warri crisis (see below) could not have prevented Shell gaining access to Aleibiri, many tens of kilometers away from the area of conflict. Shell states that the pipeline was finally clamped in July 1997, and that clean-up operations were to begin in August but were delayed until November because two barges and a crew boat were seized. In March 1998, local environmental activists reported that in the process of clearing the spill several hectares of forest had been set alight by a contractor who had collected contaminated material into heaps for burning. This method of clearing spills is not regarded as satisfactory by international standards, and in this case additionally appears to have been carried out in a negligent fashion, allowing a serious fire to occur. SPDC confirmed to an oil industry publication that a Shell contractor had set the blaze on March 25, damaging ten hectares, and that the procedures used were not in compliance withtheir requirements.123 Substantial losses were suffered as a result by several members of the community.124

The effect on the environment of the contaminated “formation water” (also known as “produced water”) separated from the hydrocarbon fluids with which it is mixed underground and deliberately discharged from flow stations and terminals is largely unevaluated. Formation water is in some cases treated to remove residual oil, but in other cases released directly into the environment. While the water discharged generally contains low concentrations of oil, its large volume, together with occasional oil spillages, could well have long term effects, depending partly on the ecological setting in which the discharge is made. In offshore locations or in areas with rapid drainage increased dilution reduces the polluting effects of the water; on land and in the swamp, however, the cumulative effect “can be devastating at some locations.”125 A 1993 Shell environmental impact study near the Bonny terminal found high hydrocarbon content in the nearby creek indicating “poor or no treatment of effluent.”126 At Abiteye, on the Escravos River in Delta State, Chevron has for several years reportedly pumped hot untreated formation water directly into mangrove creeks, not even piping it into the main tidal channel where it would be diluted and cause less damage.127 Another problem of unknown impact is the disposal of waste from oil facilities: according to a former employee,SPDC, for example, had no adequate facilities for treatment of oily or chemical waste (including polluted soil and debris) in its eastern division in 1994.128 Effluents from the refineries at Port Harcourt and Warri are usually discharged, after treatment, into adjoining creeks and rivers. Nearby communities have complained at the effects of these effluents on fish stocks.129

The DPR sets a limit of 20 ppm hydrocarbon contamination for effluent discharged to nearshore waters and 10 ppm for inland waters; FEPA’s limit is 10 ppm for coastal (nearshore) waters. In its 1996 annual report on “People and the Environment,” SPDC indicated that the water discharged at its terminals (at Forcados, Bonny, and Ughelli) did not meet the FEPA limits, although Bonny and Forcados were within the DPR limits.130 In an internal document from 1993, SPDC claimed to meet the DPR limit of 20 ppm oil and grease in its effluent at the Bonny terminal, stating that the concentration routinely discharged was 7 ppm. However, during the same period, a Shell employee noted the presence of an oily sheen on the water immediately after discharge, suggesting a concentration of at least 50 ppm.131

Nigerian crude oil is very light (low density), with a rapid evaporation loss which could be up to 50 percent within forty-eight hours.132 The oil companies therefore maintain that the effects of oil spills are largely temporary and localized. Shell states that “Complete rehabilitation after clean-up takes 12-18 months.”133 A study of a major 1970 spill at Ebubu, in Ogoni, on the other hand, carried out nineteen years after it had been set ablaze, leaving a five-meter thick crust, found that vegetation was recovering, but that vegetation in areas downstream of the spill was still being degraded due to a slow seepage of crude oil from the spill site.134 This is an exceptional case, but studies have shown that the chronic occurrence of minor spills can have “greater detrimental effects on the environment than the more visible, large-scale spillages associated with tanker accidents and blowouts.”135 Even when oil-in-water values have dropped below detectable limits, oil-in-sediment values can remain high.136 In the absence of serious independent scientific studies of the long term effects of hydrocarbon pollution in the NigerDelta, the damage caused by individual spills on the overall environment cannot be evaluated, though spills in other parts of the world have been noted to cause long term effects. Moreover, the lighter compounds that evaporate quickly (such as toluene and benzene) also have a relatively high solubility and can be toxic at very low concentrations.137

Whatever the long term impact on the environment, spills can be devastating for those directly affected, especially in the dry land or freshwater swamp areas, where the effects are concentrated in particular locations. Oil leaks are usually from high pressure pipelines, and therefore spurt out over a wide area, destroying crops, artificial fishponds used for fish farming, “economic trees” (that is, economically valuable trees, including those growing “wild” but owned by particular families) and other income-generating assets. Even a small leak can thus wipe out a year’s food supply for a family, with it wiping out income from products sold for cash. The consequences of such loss of livelihood can range from children missing school because their parents are unable to afford the fees, to virtual destitution. Even if the land recovers for the following year, the spill has consequences over a much longer period for the families directly affected. Several farmers interviewed by Human Rights Watch affected by spills appeared dazed and practically unable to take in the consequences of a recent spill, or to estimate the costs, beyond a simple statement that they had no idea how they would now manage. In tidal salt water areas, where fishing grounds tend to be open, individual families are less likely to be totally wiped out, while spills will in any event disperse more quickly. Nevertheless, big spills can still have a significant economic effect: following the Mobil spill of January 1998, savings by fishermen into microcredit schemes set up at a B.P./Statoil development project at Akassa, on the Atlantic coast, dropped appreciably.138

Similarly, since in most areas of the delta drinking water is drawn straight from streams and creeks, with no other option available to the local people, a spill can cause severe problems for the population dependent on the water source affected, even if it disperses rapidly and the water soon returns to its previous condition. Crude oil contains thousands of different chemicals, many of them toxic and some known to be carcinogenic with no determined safe threshold for humanexposure.139 Following the major Texaco spill of 1980, it was reported that 180 people died in one community as a result of the pollution.140 On several occasions, people interviewed by Human Rights Watch said that spills in their area had made people sick who drank the water, especially children.141 In January 1998, Nigerian opposition radio reported that about one hundred villagers from communities affected by a major Mobil spill of January 12 had been hospitalized as a result of drinking contaminated water.142 Litigation against oil companies for compensation in the event of spills has also claimed for deaths of children caused by drinking polluted water.143 Often, local residents complain that fish taste of paraffin (kerosene), indicating hydrocarbon contamination.

In many villages near oil installations, even when there has been no recent spill, an oily sheen can be seen on the water, which in fresh water areas is usually the same water that the people living there use for drinking and washing. In April 1997, samples taken from water used for drinking and washing by local villagers were analyzed in the U.S. A sample from Luawii, in Ogoni, where there had been no oil production for four years, had 18 ppm of hydrocarbons in the water, 360 times the level allowed in drinking water in the European Union (E.U.). A sample from Ukpeleide, Ikwerre, contained 34 ppm, 680 times the E.U. standard.144 Similarly, a geographer based at Uyo University in Akwa Ibom State, who had studied the effect of oil operations since 1985, described to Human Rights Watch how soils in communities near to the Qua Iboe area where Mobil has its tank farm had very high hydrocarbon content, while local fauna and flora, includingperiwinkles—a major food source for the local people—had died out. Follow up research had, however, proved impossible for lack of resources.145 Other studies have found hydrocarbon contamination of oysters and adverse effects on fisheries, but again further investigation is needed to ascertain the prevalence of such effects.146

The overall effect of oil spills on the delta is effectively unknown: “Although the effects of oil on mangrove environments are well known and a large number of studies appear to have been carried out in the Niger Delta, available information is not sufficient to assess the present condition of the region with respect to oil spills.”147 One zoologist, before his death perhaps the foremost expert on the ecology of the Niger Delta, commented to Human Rights Watch that “the bottom line is that the oil companies have never tried to find out what the effect of oil spills is; and those assessments that are done are useless and too late.”148 Therefore, although one study concluded that, “When assessing the impact of the oil industry on the environment of the delta, it appears that oil pollution, in itself, is only of moderate priority when compared with the full spectrum of environmental problems in the Niger Delta,”149 this opinion, admittedly based on incomplete data, is challenged by environmentalists. The overall impact of oil spills is, in any event, irrelevant in assessing the impact of individual spills or the effect on a community of discharges from a particular flowstation. Moreover, as described below, it is also the case that many of the other environmental problems of the delta are due in whole or in part to the oil industry, and the distinction between hydrocarbon pollution and the other effects of oil operations and oil-led development is largely meaningless for the local communities.

Infrastructure Development

In addition to the direct pollution caused by oil production, the oil industry has had a profound effect on the environment of the Niger Delta through the infrastructure constructed to support oil exploration and production, and the immigration from other parts of Nigeria that has followed the economic opportunities provided by oil. Oil companies have constructed roads or dredged canals to their well heads and flow stations, and in some cases have built roadsspecifically for communities (though often communities are bypassed by roads to oil facilities). These thoroughfares and others built by the Nigerian government with oil money and partly for the benefit of the oil industry have improved transportation dramatically in dry land areas of the delta region, and so increased economic activity in the affected communities, but at the same time roads have allowed cultivation and hunting in previously pristine forest and increased commercial logging activities. With the influx of comparatively rich, and almost all male, workers from the well-paid oil industry elite, has also come increased prostitution in previously isolated and stable communities.150

The lines cleared of vegetation for oil pipelines or seismic surveys151 also become informal roads, which, though not paved, allow foot access for hunters into previously inaccessible forest regions. Although seismic lines are only needed temporarily and growth regenerates quickly in dry land and freshwater areas, mangrove forests have a very slow regeneration rate. Seismic lines a few meters wide cut through mangrove decades ago are still visible from the air: SPDC estimated in 1993 that since it had started operations onshore, 60,000 kilometers of seismic line had been cut, of which 39,000 kilometers were through mangrove; forthcoming three-dimensional surveys planned would cut a further 31,380 kilometers, of which 17,400 were to be through mangrove.152 According to Shell, “In densely populated or environmentally sensitive areas, where explosions are not practical, vibrator trucks are used” rather than dynamite, which is used in “remote areas.”153 However, Human Rights Watch visited several villages in Nigeria wheredynamiting had taken place very close to human habitations, in some cases reportedly causing cracks in the walls of houses nearby.154

Roads and canals built by the oil companies can also be destructive in a more direct way than simply by promoting the mixed blessing of human access. In a number of cases, roads have been built on causeways across seasonally flooded plains, whose ecology depends on the changing hydrological conditions. Unless proper culverts are built under the causeways, as is all too often not the case, the drainage of the area is affected, causing permanent flooding on one side of the road and the drying out of the other. As a result, trees die, fishponds are destroyed, and seasonal fishing completely disrupted, often destroying a significant percentage of the income derived by local communities from the land or even the entire livelihood of some families. A typical case is that of Gbaran oil field in Rivers State. In 1991, a causeway to carry a road to the well heads was built on behalf of SPDC by Willbros West Africa Inc, a contractor to the oil industry with headquarters in the U.S. that has been involved in a number of incidents where protesters at the work they have been carrying out have been assaulted or killed by Nigerian security forces. According to local people, the causeway initially had no passages for water to pass underneath, blocking the drainage channel. Although, following protests from community members and environmental groups, culverts were eventually constructed, they were poorly designed, and the drainage of the area is still disturbed. Trees and other vegetation over a wide area have died from waterlogging, and seasonal fishing grounds have been destroyed, causing substantial economic damage to those whose land was affected.155 At the time theculverts were cut, a young girl drowned when her canoe was capsized by the turbulence caused by the draining of the lake that had developed.156 Farmers in Obite, Rivers State, in the Obagi oil field operated by Elf, also complained of flooding to Human Rights Watch.157

Canals can also disrupt delicate hydrological systems, especially when they are constructed in the border zone between fresh water and brackish water in the riverine areas. Such disruption can destroy long-established fishing grounds. A canal dug by Chevron near the remote village of Awoye, Ilaje/Ese-Odo local government area, Ondo State, has reportedly caused or accelerated erosion by the sea and has also destroyed the local hydrological system by allowing salt water into previous fresh water areas, creating a saltwater marsh in place of much higher biodiversity freshwater swamp. As a consequence, traditional fishing grounds and sources of drinking water have been wiped out: the damage is described by one expert on the Niger Delta environment as “one of the most extreme cases of habitat destruction” in the delta.158

Dredging destroys the ecology of the dredged area and the area where the spoils are dumped. Although dredged material is in principle dumped on land, some of it will inevitably slip back into the water, increasing turbidity, reducing sunlight penetration and thus plant life, and possibly driving away fish. Dredged materials in mangrove areas will turn acidic once exposed to oxygen, and silt dredged as a result of canalization and dumped on cultivated levees can decreasefarm yields. Similarly, drilling for oil produces waste, largely mud, which in itself is relatively harmless, but in the large quantities produced can cause problems by changing acidity or saline levels of the soil or water, and by increasing turbidity of the water.159 Site preparation for drilling often involves clearance of vegetation and dredging in the riverine areas.

Oil facilities can also prove hazardous in other ways. Flow stations and other facilities are often inadequately fenced. In Esit Eket, Akwa Ibom State, local residents told Human Rights Watch in July 1997 that five children had drowned since the beginning of the year in an unfenced flooded pit, roughly two meters by one meter, where SPDC used to have a “christmas tree” well head. They said no compensation from Shell had been paid for these deaths.160

Gas Flaring

Nigeria flares more gas than any other country in the world: approximately 75 percent of total gas production in Nigeria is flared, and about 95 percent of the “associated gas” which is produced as a by-product of crude oil extraction from reservoirs in which oil and gas are mixed.161 About half this gas is flared by SPDC, in line with its share of oil production. Flaring in Nigeria contributes a measurable percentage of the world’s total emissions of greenhouse gases; due to the low efficiency of many of the flares much of the gas is released as methane (which has a high warming potential), rather than carbon dioxide.162 At the same time, the low-lying Niger Delta is particularly vulnerable to the potential effects of sea levels rising.

In 1969, Nigerian legislation required oil companies to set up facilities to use the “associated gas” from their operations within five years of commencement of production. In 1979, further legislation set a time limit of October April 1980 for companies to develop gas utilization projects or face fines.163 However, without any gas utilization projects of its own, the government could not credibly enforce this legislation. After oil company lobbying, limited exemptions to this rule were granted in 1985, by an amendment and regulations which allowed flaring in certain cases; but in any event, the costs to the operating companies of ceasing flaring far outweighed the fines imposed.164 Fines for gas flaring were raised in January 1998 from _0.5 to _10 (U.S.11¢) for every 1,000 standard cubic feet of gas.165

During 1996, SPDC committed itself to the elimination of gas flaring at its facilities by 2008.166 In October 1996, Shell announced that it had awarded a U.S.$500 million contract for a new gas processing plant at Soku, Rivers State, which would supply the LNG plant at Bonny with a mixture of associated and non-associated gas. Together with two other gas facilities, at Odidi and Alscon, SPDC intends to collect 380 million standard cubic feet per day (scf/d) of associated gas, more than one third of the volume of gas currently flared by the company, before the end of the century.167 Chevron’s Escravos gas project, the first phase of which began exporting in September 1997, is intended to reduce flaring by 40 percent from its facilities.168 Mobil’s Bonny facility, which came on stream in July 1998 producing 50,000 bpd of LNG, collects associated gas and will reduce flaring from its Oso field.

Many communities in the Niger Delta believe that local gas flares cause acid rain which corrodes the metal sheets used for roofing. According to Shell internal documentation, due to the low content of sulphur dioxide and nitrous oxide in the gas, it is unlikely that flaring in fact contributes to acid rain, and various studies bydifferent consultants have failed to prove a link.169 One study of flares in the Niger Delta found that air, leaf and soil temperatures were increased up to eighty or one hundred meters from the stack, and species composition of vegetation was affected in the same area.170 However, in one case, at Utapete flow station, on the Atlantic coast near Iko village, Akwa Ibom State, a flare was sited too low, so that sea water flooded the flare pipe at high tide, vaporizing the salt and shooting it over the village. Corrosion of the roofs in Iko was shown to be faster than in other areas. In 1995, SPDC closed the flare at Utapete, shortly after local environmentalists issued a report on its effects.171 In other cases, inefficient technology in the flares means that many of them burn without sufficient oxygen or with small amounts of oil mixed in with the gas, creating soot that is deposited on nearby land and buildings, visibly damaging the vegetation near to the flare. Respiratory problems among children as a result are reported, but apparently unresearched.172 The most noticeable yet generally unremarked effect of the flares is light pollution: across the oil producing regions, the night sky is lit up by flares, that, in the rainy season, reflect luridly from the clouds. Villagers close to flares complain that nocturnal animals are disturbed by this light, and leave the area, making hunting more difficult.

In some cases, gas flares are very close to communities. Shell claims that this is usually because settlements have grown up around the oil facilities; local communities dispute this claim. In any event, the flares are rarely if ever relocated, or even made safe by providing secure fencing. In July 1997, Human Rights Watch observed women climbing right into the bunded (walled) pit where a flare was burning, to spread out cassava for drying on the earth close to the flame. A malfunction in the flare or missed footing could have fatal consequences; it is also likely that the soot from the flare would contaminate the cassava.

Compensation for Land Expropriation

For oil production to take place, land is expropriated for the construction of oil facilities (a process referred to by the oil companies as “land take”). This land is taken under Nigerian laws which are both difficult to interpret definitively and provide for an extraordinary level of government control over land use and transfer. Although the Nigerian constitution provides that no right or interest in property may be acquired compulsorily except under a law providing for the payment of prompt compensation and for the amount of compensation to be determined by a court of law or other tribunal, this right has been substantially eroded in practice by laws passed by successive military governments.173

The principal statute governing real property in Nigeria is the 1978 Land Use Act (originally Decree No. 6 of 1978), which provides that:

all land comprised in the territory of each State in the Federation are [sic] hereby vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians.174

Under this law, land in urban areas is under the control and management of the state governor; all other land falls under the control of the local government authority. The governor has the absolute right to grant “statutory rights of occupancy” to any land, to issue “certificates of occupancy,” and to demand payment of rental for that land. Local governments have the right to grant “customary rights of occupancy” to land not in urban areas. While the law is largely ignored in rural areas, where residents treat the land as their own, any transfer of occupancy rights theoretically requires the consent of the governor or local government authority. Equally, the governor may revoke a right ofoccupancy for reasons of “overriding public interest.” Overriding public interest is defined in section 28 of the act to include “the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith.” In addition, and in common with other military decrees suspending the provisions of the constitution or ousting the jurisdiction of the courts to inquire into executive acts, the Land Use Act is stated to have effect “notwithstanding anything to the contrary in any law or rule of law, including the Constitution ... and ... no court shall have jurisdiction to inquire into any question concerning or pertaining to the amount or adequacy of any compensation paid or to be paid under this Act.”175 The 1979 constitution itself specifically provides that nothing in the constitution shall invalidate the Land Use Decree.176

If land is acquired for mining purposes, the Land Use Act provides that the occupier is entitled to compensation as provided under the Minerals Act or the Mineral Oils Act (now superseded by the Petroleum Act). If compensation is due to a community, it may be paid “to the community,” “to the chief or leader of the community to be disposed of by him for the benefit of the community,” or “into some fund specified by the Military Governor for the purpose of being utilised or applied for the benefit of the community.”177 The Petroleum Act (originally Decree No. 51 of 1969), however, makes no provision for compensation to be paid for land acquisition. Section 1 of the act vests the entire ownership and control of all petroleum in, under or upon any land within the country or beneath its waters in the state. Although the act requires the holders of oil exploration licenses, oil prospecting licenses or oil mining leases to pay “fair and adequate compensation for the disturbance of surface or other rights” to the owner or occupier of any land or property,178 nothing is due for expropriation of the land itself; thus for properties acquired since the Land Use Act came into effect rent is paid to the federalgovernment only.179 Since oil is federal property, land occupiers are entitled to no royalties for oil extracted from their land.

The Oil Pipelines Act, dating from 1956 but since amended, provides for compensation both in respect of surface rights and in respect of the loss of value of the land affected by a pipeline.180 Disputes as to the compensation due may be referred to court, which “shall award such compensation as it considers just,” taking into account not only damage to buildings, crops, and “economic trees,” but also damage caused by negligence or disturbance, and the loss in value of the land or interests in the land.181

Land is acquired by the oil companies for oil operations from the Nigerian government under these laws, which in practice allow the government to expropriate land for the oil industry with no effective due process protections for those whose livelihoods may be destroyed by the confiscation of their land. While Human Rights Watch recognizes that every government has the right to acquire land for public purposes, those affected should have the right to voice oppositionto the acquisition, to challenge it before an impartial court, and to obtain adequate compensation. In practice, the decision as to the land that will be expropriated and the determination of such compensation as will be paid appears to be made by the oil industry itself.

According to Shell internal documentation, the oil company must first notify the government of the intention and purpose of a proposed acquisition, based on its own surveys of the area. The oil company also identifies the owners/occupiers of the land, notifies them of its intentions, and agrees a date for assessment of the property. Compensation for surface rights is valued in accordance with government rates which vary according to whether land is cultivated and what structures, fishponds, “economic trees,” or other assets are present. Valuations are approved by the Divisional Land Board. Once compensation payments have been made to the occupiers for the surface rights, a one-off payment, a permit to take possession of the land is granted to the oil company.182 SPDC states that its operations have taken approximately 280 square kilometers of land, or 0.3 percent of the total area of the Niger Delta and that measures are being undertaken to reduce the land taken, such as the introduction of “horizontal drilling,” and to rehabilitate land no longer needed, for example by replanting land cleared for seismic surveys.183

While the total land take may seem small by these figures, the effect of land confiscation under the legal regime in place can be very serious for those affected. Since the Land Use Act and the other relevant law provides local communities with very limited rights over land they have traditionally used, both government agencies and private companies are largely able to ignore customary land use rights, in the oil areas as elsewhere. Because the government has complete control over land, it is easy for oil companies to ignore local concerns and to fail to ensure that local communities are fully consulted. Decisions relating to use of land are completely taken out of the hands of those who have lived on and used it for centuries. Moreover, whatever the total effect of land expropriations, the effect on individual landholders can be devastating, in some cases even destroying livelihoods, especially since there is heavy pressure on cultivable land across the oil producing regions. Community members also have a strong conviction, based on traditional land use arrangements, that the community in general should be compensated for land take and disturbance caused by oil activities.

Compensation for Oil Spills

Compensation for pollution damage is equally plagued by problems of due process and difficulties in interpreting a series of overlapping statutes, combined with rules developed through the common law. The Petroleum Act does not explicitly refer to spills, but its requirement for oil companies to pay “fair and adequate compensation for the disturbance of surface or other rights” to the owner or occupier of any land or property affected by exploration or production has been held to apply to oil spills.184 There is no statutory definition of fair and adequate compensation, but in the lead case interpreting this provision, Shell Petroleum Development Company v. Farah, the Court of Appeal, basing its judgment on English and Nigerian case law, stated that compensation should “restore the person suffering the damnum [loss] as far as money can do that to the position he was before the damnum or would have been but for the damnum.”185 The Petroleum (Drilling and Production) Regulations, made under the Act, provide only for compensation for interference with fishing rights.186

The Oil Pipelines Act explicitly provides that compensation is due “to any person suffering damage (other than on account of his own default or on account of the malicious act of a third person) as a consequence of any breakage or leakage from the pipeline or an ancillary installation, for any such damage not otherwise made good,” and also provides, as stated above, for valuation to take into account damage to crops, buildings, “economic trees” and loss in value of the land.187 The Federal Environmental Protection Agency Act, in addition to providing for criminal liability for contravention of its provisions, and for spillers to be responsible for the cost of rehabilitating land, states that companies violating its provisions or regulations made under it “shall be directed to pay compensation for any damage resulting from such breach thereof or to repair and restore the polluted environmental area to an acceptable level as approved by the Agency unless he proves to the satisfaction of the court that—(a) he used due diligence to securecompliance with this Act; and (b) such offence was committed without his knowledge consent or connivance.”188

Nigerian case law also incorporates liability for negligence, nuisance, trespass, and the rule in Rylands v. Fletcher, an English law case of 1866, which held that anyone bringing onto land, in the course of a “non-natural” use of the land, something “likely to do mischief if it escapes ... is prima facie answerable for all the damage which is the natural consequence of its escape.”189 The Nigerian courts have held that crude oil can (though does not always) fall into this category. The rule provides for strict liability; that is to say, it is not necessary to prove negligence on the part of the person allowing the damaging material to escape, once it has been shown that the use is “non-natural” and that the material is dangerous or “mischievous.” However, “the owner of a dangerous thing is not liable if the thing has escaped through the independent act of a third party and there has been no negligence on his part ... in the absence of a finding that he instigated [the act] or that he ought to have provided against it.”190

Compensation at uniform rates is paid by the oil companies for spillages, where they are not attributed to sabotage, as for land expropriated. The government sets compensation rates, but the oil companies pay higher rates which are agreed across the industry and are claimed by Shell to be “calculated at on-going market prices. Loss of revenue for the period and inconveniences are also incorporated into the compensation paid.”191 In September 1997, oil companies in Nigeria announced that they were increasing the rates of compensation paid in case of oil spillage or land acquisition by over 100 percent, to _500,000 per hectare (U.S.$5,600).192 Elf states that “Compensations are paid either to the individual or family property, or to representatives with power of attorney in case of community property.”193 In theory, these rates can be challenged in the courts, which willapply general rules for assessing damages in tort (civil wrong) cases, but in practice, the standardized rates are applied.194

When spills occur, the usual procedure is that the company will be informed by the community which sees itself as the “host community” to the company, or by the community which will suffer most from the spill. The company will send its representatives to assess the extent of the spill, and the community will be instructed to approach one of the company’s registered and approved claims agents. Alternatively, the community may approach its own lawyers and hire its own claims agents for the purpose of a legal case, but few communities are able to pay legal fees up front, and so their only possibility may be to make deals with lawyers which mean that, in the event of success in court, much of the award may be taken by the legal team. Law cases are so protracted that they offer, in reality, no alternative to the company-controlled procedure.

Even when compensation is agreed in principle at oil company rates, compensation payments rarely reflect the true value of the loss to the local community.195 There are constant disputes as to what is included and to the rates paid. The oil companies allege that local communities greatly inflate their claims, including old equipment among items that are damaged by a spill: for this reason, for example, Shell states that there is no payment for damaged fishing nets “collected after any spillage has been contained.”196 Communities claim on the other hand that the compensation they receive when a claim is finally agreed is nothing compared to the loss they suffer overall and that the oil companies refuse to take into account the particular circumstances of each case, applying uniform rates whatever the loss suffered in practice: while villagers are often unaware of the full environmental consequences of oil pollution, they are well aware of the economic effect of spills on their income derived from farming or fishing.

It is also probable that the amounts theoretically paid out by the oil companies are plundered along the way by claims agents and others and do not reach the people who have actually suffered from oil company activity. Landholders in Osubi, Delta State, affected by land taken to construct an airport for Shell in 1997-98 were reportedly paid sums from _20 (U.S.22¢) to _200 (U.S.$2.20) for nut and rubber trees worth several thousand naira annually to their owners.197 In any event, cash payments can rarely compensate for the continuing income supplied by assets such as economically valuable trees which have been destroyed.

Sabotage

SPDC claimed in 1996 that sabotage accounted for more than 60 percent of all oil spilled at its facilities in Nigeria, stating that the percentage has increased over the years both because the number of sabotage incidents has increased and because spills due to corrosion have decreased with programs to replace oil pipelines.198 Of oil spills during 1997, Shell stated that 63,889 barrels, or almost 80 percent of a total 80,412 barrels, were spilled due to sabotage.199 Other oil companies similarly report sabotage to their pipelines and installations.200 Shell states that “sabotage is usually easy to determine, since there is evidence of cleanly drilled holes, hacksaw cuts, cutting of protective cages to open valves, etc. In the few cases where the evidence is unclear, ultrasonic soundings are taken for further clarification.”201 Similarly, Shell claimed that 60 percent of spillages in Ogoni from 1985 to the time it ceased production in the area were caused by sabotage.

The claims of sabotage are hotly disputed by the communities concerned. Community leaders point out that, given the fact that compensation payments arepaid late and are inadequate even if it is proved the company is at fault, there is little for them to gain from polluting their own drinking water and destroying their own crops—though they agree that this argument may not apply to those who are contractors involved in cleaning up spills. In 1996, the British Advertising Standards Authority reviewed the claim that 60 percent of spills in Ogoni were caused by sabotage, following complaints from members of the public and from Friends of the Earth, and concluded that “the advertisers had not given enough information to support the claim and asked for it not to be repeated.”202 Statistics from the Department of Petroleum Resources indicate that only 4 percent of all spills in Nigeria were caused by sabotage during the period 1976 to 1990; these statistics include offshore spills, which have been by far the largest, and are unlikely to be caused by sabotage.203

In cases of sabotage, in accordance with Nigerian law, the oil companies do not pay compensation for spills, on the grounds that to pay compensation creates an incentive to damage oil installations and harm the environment. However, even if a spill is caused by sabotage, the person carrying out the sabotage is not necessarily the person who suffers the damage. In many cases, it appears that sabotage is carried out by contractors likely to be paid to clean up the damage; sometimes with the connivance of oil company staff. A former adviser to a state petroleum minister commented as follows, repeating the gist of many similar reports to Human Rights Watch: “It is true that there is a lot of sabotage, but often it is the chiefs who do it. The oil company then settles the chiefs [i.e. pays them off] by giving them the contract to clean up, but they tell the youths they have received nothing. Then the youths protest and cause damage and the chief gets more money. If the government and the oil companies did development projects properly it would not happen.”204

Part of the problem is that there is no independent confirmation that spillages have been caused by sabotage: although the Department of Petroleum Resources is supposed to confirm sabotage and community members may also be invited toinspect the damaged installation, often no genuinely independent experts are present. Typical is the case of a landholder in Obobura, Rivers State, in the Obagi oil field operated by Elf.205 On December 31, 1996, a spillage occurred at a well head on his land, spraying crude oil over a wide area and destroying crops and fishponds. The spill was cleared up within one month, apparently by shoveling off the surface layer of oil and burning it on site, a method of cleanup which is not in compliance with international best practice. Local contractors were hired for this work, though not the family who owned the land; when they protested that they should be employed and attempted to stop clear-up work, a small detachment of Mobile Police came to warn them off and guard the site. The landowner hired a lawyer who wrote to Elf on January 9, 1997, demanding compensation. The reply, dated February 4, 1997, states (in full, as to its substantive content):

Investigation into the alleged spillage shows that some unknown person(s) cut and removed the nipple valve in the Surface Safety Valve (SSV) sensing line at the well head. Consequently, crude oil, under high pressure, jet out, affecting an area of about 100m by 150m. Thus it is a case of established sabotage, the Department of Petroleum Resources (DPR) supports our stand. We are therefore not liable to your clients in respect of their claim for compensation and wish that the issue be allowed to rest.206

Five members of the landholder’s family, who deny responsibility for the sabotage—logically, considering the damage to their crops and the lack of any benefit received—were arrested on January 4, 1997, apparently on suspicion that they were responsible for the sabotage, and held overnight at Akabuka police station. They were released the next day, without charge, but only after payment of _1,000 (U.S.$11) for each person.207

Human Rights Watch is not in a position to comment on the cause of the spillage that led to this incident. However, given that the Department of Petroleum Resources is close to the oil companies, there was no independent confirmation of the allegation that the spill was caused by sabotage. No opportunity for an independent assessment was offered to the family affected, and the informationgiven to their lawyer which is said to “establish” sabotage is too cursory to be convincing. Moreover, the letter states that “unknown person(s)” cut the valve, suggesting that there was no evidence against those arrested. In correspondence with Human Rights Watch, Elf essentially repeated the information in the letter written to the lawyers for the family, but gave no new details.208

The Petroleum Production and Distribution (Anti-Sabotage) Act of 1975, a military decree of the regime led by Gen. Murtala Mohammed, defined an offense of “sabotage” for the first time:

Any person who does any of the following things, that is to say—

(a) wilfully does anything with intent to obstruct or prevent the production or distribution of petroleum products in any part of Nigeria; or

(b) wilfully does anything with intent to obstruct or prevent the procurement of petroleum products for distribution in any part of Nigeria; or

© wilfully does anything in respect of any vehicle or any public highway with intent to obstruct or prevent the use of that vehicle or that public highway for the distribution of petroleum products,

shall, if by doing that thing he, to any significant extent, causes or contributes to any interruption in the production or distribution of petroleum products in any part of Nigeria, be guilty of the offence of sabotage under this Act.

Any person who aids, incites, counsels or procures any other person to do any of these things is equally guilty of sabotage. The decree also allows the head of state to constitute a military tribunal to try persons charged with offenses under the act, and states that those convicted may be sentenced either to death or imprisonment for a term not exceeding twenty-one years.209 The Criminal Justice (Miscellaneous Provisions) Act of 1975, passed by the same regime, makes any person who “destroys, damages or removes any oil pipeline or installation connected therewith”; or who “otherwise prevents or obstructs the flow of oil along any such pipeline or interferes with any installation connected therewith” guilty of an offense. The offense is punishable by a fine or ten years imprisonment in the firstcase, or a fine or three years imprisonment in the second.210 These laws were followed by the Special Tribunal (Miscellaneous Offences) Decree No. 20 of 1984, which created a range of offenses triable by “miscellaneous offenses tribunals” and provides that:

Any person who wilfully or maliciously—

(a) breaks, damages, disconnects or otherwise tampers with any pipe or pipeline for the transportation of crude oil or refined oil or gas; or

(b) obstructs, damages, destroys, or otherwise tampers or interferes with the free flow of any crude oil or refined petroleum product through any oil pipeline,

shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life.211

Unauthorized importation or sale of petroleum products or their adulturation were also made offenses.212 The decree provides that the constitutional bill of rights shall not apply to anything done under its authority, and that the courts may not inquire into any such actions.213 While the decree did not explicitly repeal the earlier legislation relating to sabotage, it did provide that any person who “was arrested, detained or charged with an offence under any other enactment amounting to an offence under this Act” should rather be tried under the Special Tribunal (Miscellaneous Offences) Decree.214 Insofar as the offenses overlap, therefore, theyare triable before a miscellaneous offenses tribunal, and subject to the penalties applicable under the decree, though the status of the previous laws appears to be uncertain.

According to Shell, “prosecutions for sabotage are extremely rare since, in order to obtain a conviction, the perpetrators must either be caught in the act or there must be other evidence to place them at the scene of the crime. Also, since the law provides severe penalties, it has not been in the interest of sustained community relations to press for charges, even when there is circumstantial evidence.”215 Chevron confirmed that the company “has not been able to prosecute in cases of sabotage,” and that it was not aware of any prosecutions by the Nigerian authorities: “While it is usually not too difficult to determine sabotage, there are often very few evidences to identify who is responsible.”216 Elf stated that “Sabotage cases are normally reported to the police, but we do not enforce prosecution for the interest of peace.”217

The Niger Delta Environmental Survey

As a result of the focus on Shell’s activities in Nigeria brought by the activities of Ken Saro-Wiwa and the Movement for the Survival of the Ogoni People (MOSOP), Shell led a move to establish a Niger Delta Environmental Survey (NDES).218 Shell announced the initiative, designed to head off international criticism of its Nigerian operations, on behalf of its joint venture with NNPC, Agip and Elf, on February 3, 1995, and the NDES steering committee held its first meeting on May 24, 1995. Originally financed only by the SPDC joint venture, the steering committee—urged by local and international environmentalists—insisted on the need for greater independence. Eventually, the NDES was established as an independent corporate entity, a company limited by guarantee, and all members of the Oil Producers Trade Section of the Lagos Chamber of Commerce agreed to make financial contributions, as did the Rivers State and Delta State governments.

Although the survey had been originally conceived of by Shell as a purely technical collection of scientific data on the environment in the delta, the steeringcommittee decided that the more pressing need was for an evaluation of the socio-economic and human dimensions of the environmental degradation visible in the delta.219 The mission statement eventually adopted by the NDES states that the aims of the survey were: “In concert with communities and other stakeholders to undertake a comprehensive environmental survey of the Niger Delta, establish the causes of ecological and socio-economic change over time and induce corrective action by encouraging relevant stakeholders to address specific environmental and related socio-economic problems identified in the course of the Survey, to improve the quality of life of the people and achieve sustainable development in the region.”220 The survey was intended to be “both people and community centred” and to “involve all stakeholders, particularly communities in the Niger Delta, in the process of conceptualising and implementing the Survey and secure their full participation in gathering the data, and in interpreting and using them.”221 With this strong community focus, based on participatory rural appraisal techniques, the NDES was expected to provide:

a. a comprehensive description of the area, ecological zones, boundaries, and different uses of renewable and non-renewable natural resources;

b. an integrated view on the state of the environment and its relationship to local people;

c. an analysis of the causal relationships between land use, settlement patterns, industry and the environment, to provide a base line for future development planning;

d. an indicative plan for the development and management of the Niger Delta.222

Thus, the NDES aimed to “recommend reform of policies and practices which encourage social dislocation and environmental degradation; address poverty-induced causes of environmental degradation and social tension; improve public sensitivity and understanding of environmental issues and the application of this understanding; and strengthen the capacity of the people to identify and deal with environmental problems, in their local space and their own cultural idiom.”223

With such an ambitious brief, it was perhaps inevitable that the NDES failed to fulfil its promise. SPDC had originally intended that the survey would be completed within two years, and the timetable eventually scheduled was for a preparatory phase from February to October 1995 (establishing a steering committee, defining terms of reference, and selecting managing consultants to conduct the survey); phase one, from November 1995 to April 1996; and phase two, from twelve to eighteen months after phase one. However, this schedule soon began to slip, as problems in the management of the survey became increasingly apparent. Phase one of the survey was eventually carried out between February and July 1996, by Euroconsult, a Dutch environmental consultancy, which produced a two volume report on “the definition, description of the Niger Delta and the assessment of data.”224 The report was seriously criticized by Nigerian environmentalists involved in the process, and by some personnel within SPDC, for failing to provide a clear idea of what had been achieved so far and what the next stages should be. Although a follow up report was prepared, disagreements between Euroconsult and the steering committee continued, and the contract with Euroconsult was not extended.

In September 1997, a fresh four-volume report was completed by Environmental Resources Managers Ltd, a Lagos-based consultancy, which was stated finally to represent the completion of phase one of the survey. Phase two ofthe survey is supposedly underway, though in effect the project appears to have ground virtually to a halt. Nigerian environmentalists express great skepticism as to the independence of the NDES from the oil industry—which funds it—in practice, and its ability to carry out its mandate effectively. What was initially a promising project which community members themselves, consulted for virtually the first time about their own environment, reportedly felt could make a positive contribution to improvement of their circumstances and the management of the delta, has degenerated into an opportunity for patronage for its members. A comprehensive and independent assessment of the impact of the oil industry on the ecology and communities of the Niger Delta that involves communities themselves in the process is badly needed; the NDES was the first attempt to carry out such an assessment, but its structure was always problematic for this task and it has apparently failed.

87 Good quality independent information on the environment of the Niger Delta is surprisingly hard to come by; but see World Bank, Defining an Environmental Strategy for the Niger Delta (Washington DC: World Bank, May 1995); David Moffat and Olof Lindén, “Perception and Reality: Assessing Priorities for Sustainable Development in the Niger River Delta,” Ambio (A Journal of the Human Environment), vol. 24, no.7-8, December 1995 (Stockholm: Royal Swedish Academy of Sciences, 1995), an article based on the research carried out for the World Bank report; and Nick Ashton Jones, The ERA Handbook to the Niger Delta: The Human Ecosystems of the Niger Delta (London and Benin City: Environmental Rights Action, 1998).

88 It is estimated that around 70 percent of the sediment load of the rivers has been lost as a result of the dams. Moffat and Lindén, “Perception and Reality,” pp.528-9.

89 Moffat and Lindén, “Perception and Reality,” p.530.

90 Ibid.

91 Article 40(3) of the 1979 constitution; Article 42(3) of the 1989 constitution; Article 47(3) draft 1995 constitution. See above, footnote 10. The Petroleum Act also provides in section 1 that “The entire ownership and control of all petroleum in, under or upon any lands to which this section applies [i.e. land in Nigeria, under the territorial waters of Nigeria or forming part of the continental shelf] shall be vested in the state.”

92 Petroleum Act, Cap. 350, Laws of the Federation of Nigeria, Schedule 1, section, 24(1).

93 Mineral Oils (Safety) Regulations, Regulation 7.

94 Petroleum (Drilling and Production) Regulations, Regulation 15(2).

95 Ibid., Regulation 25.

96 Ibid., Regulation 36.

97 Ibid., Regulations 17, 19, and 22.

98 Environmental Impact Assessment Decree, section 2(2). Prior to the EIA Decree of 1992, certain similar requirements applied under the Petroleum Act and other legislation, such as the requirement under the Petroleum (Drilling and Production) Regulations to draw up an “oil field development programme,” approved by the Director of Petroleum Resources, which should point out potential dangers to the environment and the appropriate solutions.

99 Environmental Resources Managers Ltd, Niger Delta Environmental Survey Final Report Phase I, Volume I, p.263.

100 Shell International Petroleum Company letter to Prof. John Heath, December 22, 1994.

101 Ken Saro-Wiwa, “My Story,” text of statement to the Civil Disturbances Tribunal, reprinted in Ogoni: Trials and Travails (Lagos: Civil Liberties Organisation, 1996), p.42-3.

102 Quoted in PIRC Intelligence, vol.11, issue 3, March 1997 (published in London by Pensions Investment Research Consultants). Principle 11 of the 1992 U.N. Rio Declaration on Environment and Development states that “Environmental standards, management objectives and priorities should reflect the environmental context to which they apply. Standards applied by some countries may be inappropriate and of unwarranted economic social cost to other countries, in particular developing countries.” As noted above, however, Nigerian law at many points explicitly refers to international standards and requires companies operating in Nigeria to respect those standards.

103 Shell International Petroleum Company, Developments in Nigeria (London: March 1995).

104 Royal Dutch/Shell Group of Companies Health, Safety and the Environment Report 1997 (London and the Hague, May 1997). Shell states that areas of noncompliance for which exemptions and waivers have been applied include effluent discharges in environments with levels which already exceed regulatory limits and areas where SPDC has not completed the installation of monitoring systems. SPDC is said to be working on bringing five main areas, currently covered by waivers, into compliance: produced water effluent limits (by the end of 1998); approved disposal facilities for produced sand, sludge and solid wastes (2000); oily waste water limits for flowstations (2000); gas flaring condition monitoring (1999); and environmental sensitivity index (ESI) mapping (2000). Tony Imevbore, Paul Driver, and Chris Geerling, “Environmental Objectives Discussion Document” prepared by SPDC for its April 1998“Stakeholders EnvironmentalWorkshop” held in Port Harcourt, section 1.3.d.

105 J.P. van Dessel, The Environmental Situation in the Niger Delta, Nigeria (Internal Position Paper prepared for Greenpeace Netherlands, February 1995), section 5.1.

106 Environmental Resources Management, Review of Environmental Statements (London: Body Shop International, March 1994)

107 Dr. Phil Smith, Review of the Environmental Statements Prepared for Nigeria LNG Ltd by SGS Environment Ltd (London: Aquatic Environmental Consultants, 1995).

108 Environmental Resources Managers Ltd, Niger Delta Environmental Survey Final Report Phase I, Volume I, p.234; see also World Bank, Defining an Environmental Strategy for the Niger Delta. Recently, geologists meeting at a conference organized by the U.N. Environmental, Scientific and Cultural Organisation (UNESCO) in Ghana identified “a growing consensus ... that oil extraction has played a strong role in speeding up subsidence and that its effects will be felt for years to come.” Shell is said to have conducted research on these effects, but has not published the results. Barry Morgan, “That sinking feeling puts heat on oil,” Upstream News (Oslo) August 7, 1998.

109 Moffat and Lindén, “Perception and Reality,” p.532.

110 Environmental Resources Managers Ltd, Niger Delta Environmental Survey Final Report Phase I, Volume I, p.249. There are 42 U.S. gallons to one barrel of oil.

111 The data on which the calculation was based were complete through October 13, 1997, and include spills of over twenty-four barrels (1,000 U.S. gallons). Tanker spills are more likely to be reported accurately than pipeline spills. Unsurprisingly, perhaps, the total is much lower than that calculated by the DPR. Oil Spill Intelligence Report (Arlington, Massachusetts), White Paper Series, vol.1, no.7, November 1997.

112 “Effect of Nigerian Spill Termed ‘Minimal’ as Last Known Patch Disperses,” Oil Spill Intelligence Report, vol.21, no.4, January 22, 1998. Other major spills occurring at around the same time (including Gulf Oil and SPDC spills in 1978) made the period 1978 to 1980 the worst for spills in Nigerian oil producing history. Environmental Resources Managers Ltd, Niger Delta Environmental Survey Final Report Phase I, Volume I, p.250.

113 Environmental Resources Managers Ltd, Niger Delta Environmental Survey Final Report Phase I, Volume I, p.250; J. Finine Fekumo, “Civil Liability for Damage Caused by Oil Pollution,” in J.A. Omotola (ed.) Environmental Laws in Nigeria including Compensation (Lagos: University of Lagos, 1990), p.268.

114 Edwin Unsworth, “Mobil Covered for Nigeria Spill,”Business Insurance, January 26, 1998; Reuters, January 20, 1998; “Effect of Nigerian Spill Termed ‘Minimal.’”

115 Oil Daily, February 27, 1998; “Effect of Nigerian Spill Termed ‘Minimal.’”

116 Oil Spill Intelligence Report, vol.21, no.4, January 22, 1998, and vol.21, no.5, January 29, 1998; Human Rights Watch correspondence with Environmental Rights Action; Oil Daily, February 27, 1998.

117 Attachment to Shell International Ltd letter to Human Rights Watch, September 7, 1998.

118 SPDC states it replaced 295 kilometers of swamp lines in 1996, and that it has replaced more than 1,000 kilometers of flowlines altogether since 1993. SPDC, People and the Environment: Annual Report 1996.

119 SPDC, People and the Environment: Annual Report 1996.

120 Shell International Ltd letter to Human Rights Watch, February 13, 1998.

121 Environmental Rights Action, “Shell’s Double Barrel Attack,” ERA Field Report No. 12, August 17, 1998.

122 Reuters, August 18, 1997; attachment to Shell International Ltd letter to Human Rights Watch, September 7, 1998.

123 Oil Spill Intelligence Report fax to Human Rights Watch, April 21, 1998. Shell stated to Human Rights Watch “Normal practice today in respect of oil-impacted debris is to remove it from site for controlled incineration. Where logistics make this difficult, a mobile incinerator is usually taken to the site. The Aleibiri site was three kilometres from the nearest transport access point, ruling out both options. Instead it was agreed that the debris be burned on location, a practice that had been successfully implemented in similar locations. At Aleibiri, a site was chosen and a firebreak established according to standard practice. However, despite these precautions the fire did get out of control. SPDC has since that time conducted further investigations to find out what happened. The investigations traced the incident to poor supervision. SPDC has accordingly revised its procedure to include additional precautions whenever such operation is to be carried out.” Attachment to Shell International Ltd letter to Human Rights Watch, September 7, 1998.

124 Environmental Rights Action, “Shell’s One Year Old Spill Sets Forest Ablaze,” ERA Field Report No. 3, March 26, 1998.

125 Environmental Resources Managers Ltd, Niger Delta Environmental Survey Final Report Phase I, Volume I, p.242.

126 Moffat and Lindén, “Perception and Reality,” p.532.

127 Human Rights Watch interview with Bruce Powell, zoologist and expert on Niger Delta ecology, London, June 20, 1998.

128 Van Dessel, The Environmental Situation in the Niger Delta, Nigeria, section 5.5.1.

129 Environmental Resources Managers Ltd, Niger Delta Environmental Survey Final Report Phase I, Volume I, p.247. Data on monitoring of discharged effluents from the refineries are known to exist but could not be accessed by the authors of the report.

130 SPDC, People and the Environment: Annual Report 1996. The figures given were: Forcados, 16 mg/l; Bonny, 14.3 mg/l; Ughelli, 17 mg/l.

131 SPDC, PAGE [Public Affairs, Government and the Environment] Fact Book 1993, section 3.3.1; Van Dessel, The Environmental Situation in the Niger Delta, Nigeria, section 5.4.

132 Moffat and Lindén, “Perception and Reality,” p.532.

133 SPDC, People and the Environment Annual Report 1996, p.14.

134 Emmanuel Asuquo Obot, A. Chinda, and S. Braid, “Vegetation recovery and herbaceous production in a freshwater wetland 19 years after a major oil spill,” African Journal of Ecology 1992, vol.30, pp.149-156. The responsibility for the Ebubu-Ochanispill has proved a controversial issue. Shell maintains that the spill was “discovered” in the early 1980s in thick forest, near Ejamah village in the Ebubu field on the edge of Ogoni, and that discussions with villagers subsequently established that the spill had occurred during the 1967-70 civil war, while all Shell staff were withdrawn from the area, and was accompanied by a fire that raged for several days. (Shell’s account is not altogether consistent: in other versions it has stated more precisely that the spill occurred in 1970 and was caused by sabotage by the retreating Biafran army, which deliberately set the oil alight to provide a barrier to the advancing federal troops.) In 1983, the paramount ruler of Ejamah-Ebubu made a claim for _10 million (U.S.$111,100) against Shell for compensation for the spill; although the company acknowledged no responsibility, Shell states that, “as a gesture of goodwill,” it agreed to try to clean up the spill, provide a water supply and pay _300,000 (U.S.$3,300) to the community. Shell later acquired the land for _77,000 (U.S.$850) and states that it awarded a clean-up contract which removed layers of oil and was completed in 1990. However, because of the depth of the crust, oil continued to leach into the environment during the wet season. A 1990 study carried out by the Institute of Petroleum Studies at the Rivers State University of Science and Technology recommended further clean-up measures. According to Shell, these measures were planned but shelved in 1993 when all staff were pulled out of the Ogoni area. Local residents, however, contradict this account, stating that the spill took place in 1970, after the end of the civil war and long after the federal army had retaken the area, and was the result of an explosion in the pipeline; the fire is alleged to have been a clean-up measure undertaken by Shell itself. See, “Flash Points in the Ogoni Story: What Happened and Lessons Learned,” briefing available on the Shell web site (http://www.shellnigeria.com) as of October 1, 1997; and Shell International Petroleum Co Ltd, Complaint to the British Broadcasting Complaints Commission, November 1995, and response from Channel 4.

135 R.J. Snowden and I.K.E. Ekweozor, “The Impact of a Minor Oil Spillage in the Estuarine Niger Delta,” Marine Pollution Bulletin vol.18, no.11, November 1987, pp.595-599.

136 C.B. Powell, S.A. White, B. Baranowska-Dutkiewicz, D.D. Ibiebele, M. Isoun, and F.U. Ofoegbu, “Oshika Oil Spill Environmental Impact: Effect on Aquatic Biology,” in The Petroleum Industry and the Nigerian Environment: Proceedings of an International Seminar, November 11 to 14, 1985, Kaduna (published by the Petroleum Inspectorate, NNPC, and the Environmental Planning and Protection Division of the Federal Ministry of Works and Housing).

137 Greenpeace U.K., “Greenpeace Oil Briefing No. 5: The Environmental Impacts of Oil,” and “Greenpeace Oil Briefing No. 6: Possible Long Term Impacts of the Braer Disaster: Review of Previous Spills” (London, January 1993).

138 Human Rights Watch interview with Bill Knight, project manager, B.P./Statoil development project in Akassa, London, June 29, 1998.

139 Greenpeace U.K., “Greenpeace Oil Briefing No. 7: Human Health Impacts of Oil” (London, January 1993).

140 Fekumo, “Civil Liability for Damage Caused by Oil Pollution,” p.268.

141 For example, interviews at Edagberi, Rivers State, July 5, 1997, referring to a spill that took place in July 1996. The Director of Research at the California Air Resources Board stated to Greenpeace in 1993 that, faced with a situation similar to the Braer oil spill in the Shetlands, he would evacuate children living in the affected locality. Greenpeace U.K., “Greenpeace Oil Briefing No. 7: Human Health Impacts of Oil.”

142 Radio Kudirat Nigeria, January 30, 1998, as reported by BBC SWB, February 4, 1998.

143 For example, SPDC v. Chief Caiphas Enoch and two others [1992] 8 NWLR (Nigerian Weekly Law Reports) (Part 259), p.335, in which five children are alleged to have died as a result of drinking oil-contaminated water.

144 Stephen Kretzmann and Shannon Wright, Human Rights and Environmental Information on the Royal Dutch/Shell Group of Companies, 1996-1997: An Independent Annual Report (San Francisco and Berkeley, CA: Rainforest Action Network and Project Underground, May 1997), p.6. The E.U. standard is 0.05 ppm.

145 Human Rights Watch interview, July 8, 1997.

146 Environmental Resources Managers Ltd, Niger Delta Environmental Survey Final Report Phase I, Volume I, p.179.

147 Ibid., p.250.

148 Human Rights Watch interview with Bruce Powell, London, June 20, 1998.

149 Moffat and Lindén, “Perception and Reality,” p.532.

150 For one account, see, Ibim Semenitari, “Siege of the Sluts,” Tell, February 23, 1998. For the effect of oil on local political economies generally, see below.

151 Seismic surveys are one of the most important methods of surveying sites for oil deposits without actually drilling. Sound waves, usually generated by detonating dynamite a few meters below ground, are sent into the earth, and the time taken for them to be reflected by the different rock layers present is measured and gives an indication of where oil may be found. The most sophisticated seismic surveys are three-dimensional, in which seismic lines are laid out in a dense grid and the recorded data processed by computers. In order to carry out a seismic survey vegetation is cut back to ensure that the holes for the dynamite are sited in a straight line; these lines are referred to as “seismic lines.” Shell publicity booklet, Oil (London: Shell International Ltd, 1990).

152 SPDC, PAGE Fact Book 1993 section 3.1.1. In recent years, Shell has introduced a program for replanting seismic lines in mangrove areas, though local environmental groups have claimed that it is poorly managed and ineffective.

153 Shell publicity booklet, Oil.

154 For example, at Ozoro, Isoko North Local Government Authority, Delta State, where a survey by Seismographic Services Limited for SPDC was said to have caused cracks in the walls of a house visited by Human Rights Watch on July 21, 1997.

155 Human Rights Watch interviews, Yenezue-Gene, July 5, 1997. In response to inquiries from Human Rights Watch, dodging the issue of the blockage of water passage and the level of damage done, Shell stated that: “Gbaran field development was planned in two phases. Phase I involved the accelerated construction of drilling locations and their access roads. The objective was to facilitate an early commencement of drilling operations. In this phase, three bailey bridges were constructed and the work was completed in 1990. The drainage structure provided at this stage was adequate but could not provide long term solutions to the drainage problem in the field. Phase II was planned to commence at the end of drilling operations and this involved detailed engineering design and construction of all required long-term facilities including drainage improvement works. After the completion of Phase I, work could not immediately commence on Phase II because of budget constraints that has become an industry problem, and low oil yield resulting from the drilling of Gbaran-5 (ex-GbaranVQTL-1) location.” Phase II eventually began in 1995, and a number of bridges and culverts have been added, although several are outstanding. “Twelve claimants have been paid compensation; others are at various stages of processing, while incoming claims are being considered.” Shell International Ltd letter to Human Rights Watch, February 13, 1998.

156 Human Rights Watch interviews, Yenezue-Gene, July 5, 1997.

157 Human Rights Watch interviews, July 4, 1997.

158 Ebun-Olu Adegboruwa, “Report on Visit to Awoye Community,” Gani Fawehinmi Chambers, Lagos 1997; Human Rights Watch interview, Bruce Powell, June 20, 1998. Chevron states that it has allowed access to a borehole at its nearby Opuekeba facilities since 1994: Chevron Nigeria Ltd letter to Human Rights Watch, June 29, 1998. Human Rights Watch has not itself visited the site. A major protest at Chevron’s Parabe platform, offshore from the Ilaje area, took place in May 1998, by youths protesting habitat destruction, among other complaints (described below in the section on “Protest and Repression in the Niger Delta”). In September 1998, at least fifty died and thousands were displaced in the Ilaje-Ese-Edo local government area of Ondo State in armed clashes between Ijaw and Ilaje communities laying competing claims to Apata, an oil rig area located between them.

159 Van Dessel, The Environmental Situation in the Niger Delta, Nigeria, section 5.3. SPDC claims that “Our long term target is to achieve a dry drilling location,” and that, in 1996, “almost no mud discharges to the environment were made,” while a “drilling waste management strategy” was prepared to meet DPR Environmental Guidelines and Standards. SPDC, People and the Environment: Annual Report 1996.

160 Human Rights Watch interviews and site visit, July 8, 1997. The names of the children given were: Okon Mkpapa, Udong Ete, Ekpe Ekene Nsuwegh, Adia Haudeno, and Philip Sunday. All were one or two years old.

161 Khan, Nigeria, p.162; SPDC, Nigeria Brief: Harnessing Gas (Lagos: SPDC, August 1996).

162 The World Bank estimates that Nigerian gas flaring releases some 35 million tonnes of carbon dioxide annually. This represents 0.2 percent of total global man-made carbon dioxide emissions; of which the rest of Africa contributes 2.8 percent; Europe 14.8 percent; the USA 21.8 percent; and the rest of the world 60.4 percent. SPDC, Nigeria Brief: Harnessing Gas. See also World Bank, Defining an Environmental Strategy for the Niger Delta, and Moffat and Lindén, “Perception and Reality.”

163 Petroleum (Drilling and Production) Regulations, Regulation 42 (which came into force in November 1969), and the Associated Gas Reinjection Act, Cap.26, Laws of the Federation of Nigeria, 1990 (which came into force in 1979).

164 Associated Gas Reinjection (Continued Flaring of Gas) Regulations, 1985; see also Khan, Nigeria, p.162. Because of the geology of Nigeria’s oilfields, reinjection of gas is, according to the oil companies, not usually an economic option.

165 Reuters, November 19, 1996; Environmental Rights Action, Niger Delta Alert No. 1, January 1998. NNPC is exempt from these fines, so the oil majors in theory pay in accordance with their share in the joint ventures.

166 SPDC, People and the Environment: Annual Report 1996.

167 SPDC Press Release, October 18, 1996; see also SPDC Nigeria Brief: Harnessing Gas.

168 U.S. EIA, “Nigeria Country Analysis Brief.”

169 SPDC, PAGE Fact Book 1993, section 3.3.2; Environmental Resources Managers Ltd, Niger Delta Environmental Survey Final Report Phase I, Volume I, p.244.

170 Augustine O. Isichei and William W. Sanford, “The effects of waste gas flares on the surrounding vegetation in South-Eastern Nigeria,” Journal of Applied Ecology 1976, vol.13, pp.177-187.

171 Environmental Rights Action, sHell in Iko (Benin City: Environmental Rights Action, July 10, 1995); Human Rights Watch interview with Bruce Powell, June 20, 1998.

172 Human Rights Watch interviews, Uzere, Delta State, July 21, 1997.

173 Article 40 of the 1979 constitution (Article 42(3) of the 1989 constitution; Article 47(1) of the draft 1995 constitution) provides that:

(1) No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things—

(a) requires the prompt payment of compensation therefor; and

(b) gives to the person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.

174 Section 1, Decree No. 6 of 1978, Cap. 202, Laws of the Federation of Nigeria.

175 Section 27, Land Use Act.

176 Article 274(5) of the 1979 constitution. This provision is repeated in Article 346(5) of the draft 1995 constitution.

177 The act also provides for Land Use and Allocation Committees to be appointed by and advise the military governors on the management of the land, and to settle disputes as to compensation to be paid.

178 Petroleum Act, Section 36. The Petroleum (Drilling and Production) Regulations, made under the Act, also provide that before entering or occupying any private land, oil companies are required to obtain written permission from the government and pay “fair and adequate compensation” to the lawful occupiers, presumably in respect of the rights mentioned in the primary legislation. Petroleum (Drilling and Production) Regulations, Regulation 17(c)(ii).

179 Before the Land Use Act came into effect, the Public Land Acquisitions (Miscellaneous Provisions) Act 1976 and other laws provided for compensation to be paid in respect of the land acquired itself. See J.A. Omotola, Essays on the Land Use Act, 1978 (Lagos: Lagos University Press, 1984), chapter 5, “Compensation provisions under the Act.”

180 The Act provides: “The holder of a licence shall pay compensation:

(a) to any person whose land or interest in land (whether or not it is land in respect of which the licence has been granted) is injuriously affected by the exercise of the rights conferred by the licence, for any such injurious affection not otherwise made good; and

(b) to any person suffering damage by reason of any neglect on the part of the holder or his agents, servants or workmen to protect, maintain or repair any work structure or thing executed under the licence, for any such damage not otherwise made good; and

© to any person suffering damage (other than on account of his own default or on account of the malicious act of a third person) as a consequence of any breakage or leakage from the pipeline or an ancillary installation, for any such damage not otherwise made good.”

Oil Pipelines Act, Cap.338, Laws of the Federation of Nigeria, 1990, section 11(5).

181 Ibid., Section 20. “In determining the loss in value of the land or interest in land of a claimant the court shall assess the value of the land or the interests injuriously affected at the date immediately before the grant of the licence and shall assess the residual value to the claimant of the same land or interests consequent upon and at the date of the grant of the licence and shall determine the loss suffered by the claimant as the difference between the values so found, if such residual value is a lesser sum.” Section 20(3).

182 SPDC, PAGE Fact Book 1993.

183 SPDC, People and the Environment: Annual Report 1996.

184 Petroleum Act, Section 36.

185 [1995] 3 NWLR (Part 382) p.148, at p.192. The Farah case arose from a blow out at Shell’s Bomu II oil well in Tai/Gokana local government areas in Ogoni in 1970, though the case was not commenced until 1989. Shell has appealed from the Court of Appeal to the Supreme Court.

186 Regulation 23 states that “if the licensee or lessee exercises the rights conferred by his licence or lease in such a manner as unreasonably to interfere with the exercise of any fishing rights, he shall pay adequate compensation therefor to any person injured by the exercise of those first-mentioned rights.”

187 Oil Pipelines Act, sections 11(5) and 20(2).

188 Federal Environmental Protection Agency Act, section 36.

189 (1866) LR1 Exch. 265. Oil naturally occurs in the ground, and therefore in its natural state would not come under the rule in Rylands v. Fletcher. However, once it has been channeled through pipes or gathered into tanks, its presence is no longer “natural” and the rule applies. However, the case law on the issue is not entirely consistent. See J. Finine Fekumo, “Civil Liability for Damage Caused by Oil Pollution,” in Omotola (ed.) Environmental Laws in Nigeria.

190 SPDC v. Chief Graham Otoko and five others [1990] 6 NWLR (Part 159), p.693, at p.724.

191 Shell International Ltd letter to Human Rights Watch, February 13, 1998.

192 Reuters, September 2, 1997.

193 Elf Petroleum Nigeria Ltd letter to Human Rights Watch, May 8, 1998.

194 See J.A. Omotola, “The Quantum of Compensation for Oil Pollution: An Overview,” in Omotola (ed.), Environmental Laws in Nigeria.

195 In 1995 the World Bank estimated that the value of forest products was at least fifty times the government rate for compensation. World Bank, Defining an Environmental Development Strategy, p.93.

196 Reuters, October 5, 1997, quoting a SPDC spokesperson in connection with demands by members of the Peremabiri community for compensation for fishing nets allegedly damaged in a June 1997 spillage.

197 Environmental Rights Action, “Shell’s Airport at Osubi—The Killing of Sleep,” ERA Monitor Report No. 5, April 1998. Shell stated that a total of _194.7 million (U.S.$2.16 million) was approved in compensation for the loss of use of land and crops, although a small percentage of this remained in a holding account pending negotiations with a claimant who had begun a court action. “Osubi Airport Project: Shell Nigeria’s Response to Allegations by ERA,” SPDC Press Release, March 23, 1998.

198 SPDC, People and the Environment: Annual Report 1996.

199 SPDC letter to Environmental Rights Action, August 19, 1998. The data given were as follows:

1997 oil spills (barrels) Land Swamp Total

Corrosion 4,205 7,327 11,532

Operations 4,415 413 4,828

Sabotage 52,676 11,213 63,889

Other 44 119 163

Total 61,340 19,072 80,412

200 With the exception of Mobil, which has most of its operations offshore and which stated to Human Rights Watch that no act of sabotage had occurred at any of its facilities. Mobil Producing Nigeria Unlimited letter to Human Rights Watch, February 10, 1998.

201 Shell International Ltd letter to Human Rights Watch, February 13, 1998.

202 The Advertising Standards Authority, ASA Monthly Report, no.62 (London, July 1996), pp.40-41.

203 Environmental Resources Managers Ltd, Niger Delta Environmental Survey Final Report Phase I, Volume I, figure 14.5, p.253. The other causes recorded were corrosion (33 percent), equipment failure (38 percent), blow-out (20 percent), accident from third party (1 percent), operator or maintenance error (2 percent), and “natural” (stated as 0 percent, presumably 3 percent intended). Sixty-nine percent of total spills during the same period were offshore, 25 percent in swamp, and 6 percent on land.

204 Human Rights Watch, interview, July 7, 1997.

205 Human Rights Watch interviews, July 4, 1997.

206 Letter dated February 4, 1997, from Elf Petroleum Nigeria Ltd (signed E. Chiejina), reference RC/LC 97/18, to C.V. Goodwill and Co, Port Harcourt.

207 Those arrested were Pastor P.N. Orji, Christopher Nwubio, Isaiah Samuel, Abel Orji and Chief S.U. Amirize. Human Rights Watch interviews, July 4, 1997.

208 Elf Petroleum Nigeria Ltd letter to Human Rights Watch, May 8, 1998.

209 Section 1, Petroleum Production and Distribution (Anti-Sabotage) Decree no.35 of 1975 (Cap. 353, Laws of the Federation of Nigeria).

210 The Criminal Justice (Miscellaneous Provisions) Decree no.30 of 1975 (Cap. 78, Laws of the Federation of Nigeria), Section 3(1) and (2).

211 Section 3(7), Cap. 410, Laws of the Federation of Nigeria. The maximum sentence was originally the death penalty but was reduced to life imprisonment by the Special Tribunal (Miscellaneous Offences) (Amendment) Decree no.22 of 1986, which also provided for an appeal to a Special Appeal Tribunal. The original decree was promulgated by the regime of Mohammadu Buhari, the amendment by Ibrahim Babangida. Miscellaneous offenses tribunals, composed of one judge, three members of the armed forces and one police officer, may be created by the president and commander in chief of the armed forces for any state.

212 Ibid., sections 3(17) and (18).

213 Ibid., section 11.

214 Section 12(2) provides that “Any person who on or at any time after 31st December 1983 was arrested, detained or charged with an offence under any other enactment amounting to an offence under this Act shall be liable to be tried and convicted in accordance with the relevant provisions of this Act and any charge or information pending against him in or before any court or tribunal shall as from the making of this Act, abate.”

215 Shell International Ltd letter to Human Rights Watch, February 13, 1998.

216 Chevron Nigeria Ltd letter to Human Rights Watch, February 11, 1998.

217 Elf Petroleum Nigeria Ltd letter to Human Rights Watch, May 8, 1998.

218 SPDC’s February 3, 1995, press release announcing the establishment of the NDES made clear the pressure Shell felt it was under by referring to “recent politicized and emotive campaigning [which] has clouded some very important issues concerning the development of this region.”

219 SPDC’s February 3, 1995, press release stated that the survey would “catalogue the physical and biological diversity of the 70,000 square kilometre Niger Delta” including information on “population growth, migration, farming, deforestation, soil degradation, oil activities, road building and other factors, over time.” The change of focus from this approach to one which centered on the human consequences of environmental degradation and oil activities was largely the work of two members of the steering committee: Professor Claude Ake of the Centre for Advanced Social Science in Port Harcourt, and Struan Simpson of the Conservation Foundation in London. Professor Ake resigned from the committee in November 1995, in the wake of the execution of Ken Saro-Wiwa and eight other Ogoni activists, and in protest at Shell’s response to the executions (he later died in a November 1996 plane crash). The Conservation Foundation withdrew its support for the project, and Dr. Simpson resigned, in December 1997, as a result of the survey’s failure to make progress in achieving its terms of reference.

220 NDES, “The Niger Delta Environmental Survey: Background and Mission,” NDES Briefing Note 1, October 1995.

221 Ibid.

222 NDES, The Niger Delta Environmental Survey: Terms of Reference,” April 3, 1996.

223 NDES, “The Niger Delta Environmental Survey: Background and Mission.”

224 G.O. Onosode, Chairman, Niger Delta Environmental Survey, “Text of Press Briefing on the Niger Delta Environmental Survey (NDES),” Sheraton Hotel, Lagos, September 10, 1996.

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