RESOURCE CONTROL IN NIGERIA:
The Legal and Regulatory Challenges
- ADUCHE WOKOCHA, LL.M, B.L.
Senior Lecturer and Head of the Department of Public Law,
Rivers State University of Science and Technology, Nkpolu, Port Harcourt, Nigeria.
Executive Director, Schalesworths Centre for Democracy and Development, Port Harcourt, Nigeria.
LIST OF STATUTES
African Charter on Human and People’s Rights (ACHPR) Act, Cap 10, LFN
Associated Gas Re-injection Decree of 1979, Cap 26 LFN 1990.
Constitution OF THE Federal Republic of Nigeria, 1979.
Constitution OF THE Federal Republic of Nigeria, 1999.
Decree No.22 of 1998.
Environmental Impact Assessment Decree of 1992, Cap 86, LFN 1990.
Exclusive Economic Zone Act Cap 116 LFN 1990.
Federal Environmental Protection Agency Decree of 1988.
Federal Environmental Protection Authority Act cap 131 LFN 1990
Harmful Waste (Special Criminal Provisions etc.) Act. Cap 165 LFN 1990.
Harmful Waste (Special Criminal Provisions etc) Decree, 1988.
Interpretations Act. Cap 192, LFN 1990.
Land Use Act, Cap 202, LFN 1990.
Lands (Vesting etc) Decree of 1993
Minerals and Mining Decree of 1999, Decree(now Act) No. 34 of 1999.
Mineral Oil Act 1914 now Cap 130, LFN 1990.
Mineral Oils (safety) Regulation of 1963.
Mineral Oil Ordinance 1917 and 1946.
Navigable Waterways Declaration Act Cap 287 LFN 1990.
National Inland Waterways Authority Decree.
Nigerian National Petroleum Corporation Act Cap 320, LFN 1990.
Nigeria National Petroleum Corporation Act cap 320 LFN 1990 S.1
Oil in Navigable Waters Act of 1968, Cap 337 LFN 1990.
Oil Pipelines Act of 1956, Cap 31 LFN 1990.
Oil Terminal Dues Act of 1969, Cap 339, LFN 1990.
Petroleum Act of 1969, Cap 350, LFN 1990.
Petroleum (Drilling and Production) Regulation 1969.
Territorial Waters Act Cap 428 LFN 1990.
African Charter on Human and People’s Rights (ACHPR), 1981.
Australian Sea and Submerged Lands Act of 1948.
United Nations Universal Declaration of Human Rights, 1948. Article 25
U.N. Declaration on the Right to Development 1986. Article 2(i).
- Convention on Preservation of Biological Diversity 1992
U..N. Convention on Preservation of Biological Diversity 1992,
United Nations Stockholm Declarations on the Environment and Development of 1972.
LIST OF CASES
Attorney General of Abia State and others v Attorney General of the Federation (2002), unreported decision of the Supreme Court of Nigeria.
Attorney General of Canada v Attorney General of British Colombia 8 DLR (4th) p.161.
Attorney General of the Federation v. Attorney General of Abia State & 35 Ors. (2001) 11 NWLR 689.
Attorney General of Bendel State v Attorney General of the Federation and
Others. (1982) 3 NCLR 1.
Attorney General of the Federation v Attorney General of Abia State and 35 others, (2002) 10 SCNQLR 163.
Schlorsch Meirer GMBH v Henn. (1975) 1 All E.R. 152
The Case of Mines. 75 ER 472. See also
the Trail Smelter Arbitration case 3 MAA 1905
US v State of Louisiana 420 US 529 (1975).
US v State of Maine 420 US 515.
Woolley v Attorney General of Victoria (1877) 2 App Cas 163 at 167-8.
Chapter 1: UNDERSTANDING RESOURCE CONTROL
Chapter 2: HISTORICAL ANTECEDENTS OF THE AGITATION FOR RESOURCE CONTROL IN NIGERIA
Chapter 3: THE LEGAL AND REGULATORY CHALLENGES OF RESOURCE CONTROL IN NIGERIA TODAY
Chapter 4 THE IMPACT OF CENTRAL CONTROL OF RESOURCES ON THE NIGERIAN STATE
- Overwhelmed Government
- Economic Alienation of Citizens
- Neo Colonialism
- Ethnic Distrust
- Environmental Degradation:
- Political Instability:
Chapter 5: RESOURCE CONTROL IN OTHER JURISDICTIONS
- Public Control of Resources:
- Private Control of Resources:
- Mixed Control of Resources
Chapter 6. RESOURCE CONTROL AND INTERNATIONAL GUARANTEES:
Chapter 7. THE NEED TO RETHINK NIGERIAN LAW ON RESOURCE CONTROL
Chapter 8. TOWARDS EFFECTIVE RESOURCE CONTROL IN NIGERIAN LAW
Chapter 9. CENTRIST RESOURCE CONTROL AND THE NIGERIAN OIL AND GAS INDUSTRY
- The Peculiarity of the Oil and Gas Industry
- The Oil and Gas Sector in the Nigerian Economy
- Regulation and Participation in the Oil and Gas Sector
Chapter 10. DEVELOPMENTAL IMPLICATIONS FOR THE OIL AND GAS SECTOR
- Understanding Development
- Some Developmental Problems In The Oil And Gas Sector
Chapter 11. TOWARDS A DEVELOPMENT POSITIVE POLICY FOR THE NIGERIAN OIL AND GAS INDUSTRY
In recent times, the issue of resource control has taken the center stage agitating both the Federal Government and Governments of the State of our Nigerian Federation. This wave of agitation is only a resurge of a time long malaise plaguing the Nigerian Nation for over 35 years of its 42 years lifetime. Why does the agitation arise in democratic sovereign state like Nigeria? Is it desirable or expedient? What are the legal problems militating against its practice in Nigeria, and how can it be regulated in the event that it becomes possible/practicable?
This chapter examines the above questions, and proffers suggestions on how to regulate resource control in Nigeria, to the over all advantage of the Nigerian Nation. We do not seek an exhaustive discussion of the laws as they are, but only cite them with a view to highlighting their federative and developmental defects as a basis for understanding the advantages of rethinking the law and the developmental trajectories of federative correctness of resource control in Nigeria. Of necessity, we draw heavily on the law and cases in Nigeria and other Commonwealth jurisdictions in this discourse, and are immeasurably grateful to learned writers whose contributions on this issue have proved jurisprudential bone and flesh to this inquiry.
UNDERSTANDING RESOURCE CONTROL
The Blacks Law Dictionary defines a resource as:
“a means of supplying some want or deficiency, a stock or reserve upon which one can draw when necessary. The collective means possessed by any country for its own support or defence”.
While the Chambers Twentieth Century dictionary concisely defines it as:
“ Money or means of raising money: means of support”. 
These suggest some material object of a tangible or intangible nature, which is capable of satisfying or securing the satisfaction of human needs in society. They would therefore include natural resources and money and other man made resources capable of being acquired through the exploitation of such natural resources.
Control on the other hand has been defined as:
“restrain: authority: command… regulation, a check or the fact of controlling, or of checking and directing action, domination, command.
In effect control denotes the capacity to authorize, alter or prevent the use of a subject matter. In this sense, resource control will translate to the ability or capacity to direct the course of exploitation of the means of satisfying human and social needs in a given society.
For a nation like Nigeria, the term resource control generally raises issues relating to legislative competence of, and the formula for revenue sharing between the various tiers of government of the federation, and the participatory capacity of unit governments and citizens in the economy of the country.
On the first issue, the lopsided apportionment of legislative competence in the Nigerian constitution is too well known. Not only is the Federal Government so loaded that it has become a paternalistic “father Christmas”, it is the only competent legislator on the list. This is so when it is considered that even in respect of the matters on the concurrent list, the federal legislations where contrasted by a state legislation, overrides the later, for a federation this is, to say the least, tragic.
The politics and intrigues of revenue allocation in Nigeria are too well known to merit much mention. The clear picture is that the federal Government continues to take the lion’s share while the other tiers of government settle for the crumbs. Again, when it is considered that the state and local Governments are the levels of government that directly touch the people’s life, this becomes unconscionably uneconomic. This is even made worse by the inequitable and vexing issue of derivative principles which has been manipulated across time to favour the predominant groups in the federation.
As to the third issue, the anomic existence of the citizens vis-à-vis their economy, is common knowledge. The Nigerian is largely a spectator at his own wresting match. As Wokocha has argued earlier,the citizen is practically excluded from participation in the development of his nation’s economy.
The term, as presently applied within the context of the Nigerian discourse, and in this chapter, refers to the right to control, determine and use natural and other resources within the respective territories of the States of the Nigerian Federation. It is therefore of the nature of a claim of ownership which once was naturally enjoyed by all, later constitutionally guaranteed in Nigeria until 1966 before being temporarily suspended and later permanently extinguished by centrifugal philosophy and egocentric sanctimony of Unitary Federalism.
It is important to note here that what is meant in the context of the agitation in Nigeria is not an exclusive ownership of control right, but a concurrent right to be exercised alongside other competent persons. As Odebala  puts it,
“The call for resource control is not a call by Government of the South-South State, to control the oil resources on behalf of their States. It is a call that there should be individual, family, or communal ownership of land and the resources found there from. The States are calling for abrogation of the Land Use Decree and some other obnoxious law, which made it possible for the Federal Government to control resources of people, without allowing them access to the resources and revenue derived there from”.
- This might well be Mr. Odebala’s personal view, as there exist more views that ask for exclusive right, subject only to payment of tax to the central government, but to a large extent it represents the context of the agitation in Nigeria. It is more or less a call to excise natural resources such as gold, oil, gas, potassium, bromite, and other major sources of livelihood from the exclusive legislative list now in the exclusive control of the Federal Government. Ikpatt and Ibanga clearly express this position when they argued that;
Every state should wholly control – or partially over a set period of time – its own resources while paying taxes to the federal government. Derivation principle as applied is a veneer under which the federal government perpetrates the fleecing of Nigeria: it is one of lifelines for the Nigeria unitary styled system of government founded upon corruption and injustice. It also helps to sustain an overbearing and uncontrollable bureaucracy that has hindered progress while also being used as a choice weapon of humiliation and cheating against minorities in Nigeria – especially peoples of the Niger Delta region. Resource control, on the other hand, is the magic wand in contemporary economics for empowering and prospering an entire cross section of the socio-economy while promoting individual and property rights expected in a true federalism.
HISTORICAL ANTECEDENTS OF THE AGITATION FOR RESOURCE CONTROL IN NIGERIA
The agitation for resource control can be traced back to pre independence Nigeria. The battle for the control of the coastal trade leading to the deportation of King Jaja of Opobo and other coastal Kings, marked the beginning. As was observed concerning this period in the first place, Jaja fought to preserve his Kingdom and sovereignty by refusing to sign any treaty of protection and demanded to know first, the full meaning of “protection”. He wanted to be sure that “protection” would not imply his loss of the government of his territory. Explaining the motive for Jaja ‘s position, Onwubiko states that
“Jaja struggled to preserve for himself the monopoly of the trade in the districts around Opobo, as the Royal Niger company had done for itself in the lower Niger. In the treaty with Britain in 1884 he insisted that the articles providing for free trade should be removed.” 
This continued till 1945 when the first predative enactment in this direction was made, vesting the entire property and control of all minerals, mineral oil, in, under or upon any land in Nigeria, and of all rivers, streams and water courses throughout Nigeria in the Crown. the nationalist elements in Nigeria under the able leadership of Nnamdi Azikiwe and Obafemi Awolowo attacked this provision in unison describing it as an obnoxious law. Reacting to the ordinance, Nnamdi Azikiwe argued that the British crown had no right to expropriate land which is the people’s mainstay as an agrarian people, nor was it right for it to appropriate minerals in the land to itself. Decrying this foreign control of resources, Dr. Nnamdi Azikiwe, who later became the first President of independent Nigeria, stated without any reservation in 1933 that:
“Amidst … conflicting ambitions of Europe for territorial expansion in Africa is the human factor the fate of indigenous black Africans who dwell on this continent.
They constitute an extraneous element so far as European imperialism is concerned.
Their raw materials mean more to Europe that their existences to enjoy the fullest of life as do the Europeans, on their own continent, respectively. Their manpower seems only valuable for the machinery of European imperialism”.
The second epoch of the agitation for resource control came in the penultimate moments of colonialism. This was inspired by the spirit of self determination and the fear of inequity among regions, especially the western and northern regions respectively, and the numerous minorities of the south south regions (then under eastern region). As Balarabe Musa observed concerning the time:
“I mean if we are to be honest the North and the West had always been” for the authonomy of the North, authonomy of the West. They saw Nigeria’s unity as just a second alternative. The first alternative is north for the Northern, West for the Westerners.
In this epoch, Chief Obafemi Awolowo, the chief exponent of federalism, had argued in favour of regional control of resources within regions. The peoples of the minority groups threatened by the perceived predatory tendencies of the larger groups, agitated for fears of economic subjugation, called for resource control. The Willionks Commission which recommended constitutional safeguards and protection for minority interest, was the official outcome of this epoch of the agitation for resource control in Nigeria.
The current call marks the third epoch of the agitation. Originating from the struggles and martyrdom of one “compressed giant” . Ken Saro-Wiwa and his Ogoni people, fermenting with Egbesu clashes and the blood of dead aged and infants in the marshes of Odi in Bayelsa State, and blooming in the periodic meetings of the now elected Governors of the Southern States of Nigeria.
The demand for ownership and, or control of resources should therefore not be viewed as an outrageous demand neither should it be considered as a novel or unpatriotic one. Akaakar did observe rightly, when she stated that:
“Many of the world’s remaining indigenous people-estimated at over 250 million living in more than seventy countries – take a view of nature that differs strikingly from conventional attitudes. The attitudes of three groups of indigenous people: the Quichua-speaking Amerindians in the rainforests of eastern Ecuador, the Maasai and Samburu nomadic pastoralists of Kenya, and the indigenous swidden (slash-and-burn) farmers in the upland areas of the Philipines as reported in a 1992 study is quite illustrative. The study concluded that many indigenous people view land not as a commodity to be bought and sold in impersonal markets but as a substance endowed with sacred meaning, embedded in social relations, and fundamental to the understanding of the groups’ existence and identity.
The tribal Filipinos see land as a symbol of their historical identity: an ancestral heritage to be defended and preserved for all future generations. According to the Episcopal Commission on Tribal Filipinos, they believe that wherever they are born, there too shall they die and be buried, and their own graves are proof of their rightful ownership of the land. It symbolizes their tribal identity because it stands for their unity, and if the land is lost, the tribe, too, shall be lost. Ownership of land is seen as vested upon the community as a whole. The right to ownership is acquired through ancestral occupation and active production. To them, it is not right for anybody to sell the land because it does not belong to only one generation, but should be preserved for all future generations”.
The conflict in Papua Guinea between some community landowners and mine workers on the Island of Bougainvaille, which forced the closure of the copper mine in 1989, centered on the assertion of control by indigenous communities. This conflict continued for several years thereafter.
This struggle better known world-wide as the righteous indignation and justified revolt of a marginalized oil rich Niger Delta, is for justice, a demand for equitable refederation of Nigeria’s economic policy, a call for a viably developed and truly federated republic of Nigeria. What are the obstacles to its realization? What does the Nigerian law say about this quest? These pertinent questions form the next part of our discourse.
THE LEGAL AND REGULATORY CHALLENGES
OF RESOURCE CONTROL IN NIGERIA TODAY
Resource control, which is legally distinct from ownership, albeit contextually appertains to ownership and right to decide the incidence, terms and distribution of the reward from the outcome of exploitation of mineral resources located and situate within determinate regions (territories) of determinate States of the Nigeria Federation. Since the Nigerian State and its units are creations of law, albeit politically conceived and contrived, it operates in accordance with applicable rules made by, for and recognized as governing activities within the Nigerian State.
Resource control is therefore a function of law, the location of the legally recognizable right to control the incidence of exploration of resources, especially natural resources within the Nigerian legal system. In this context, it connotes resources ownership, which has been described as a temporal creation in the sense that it is a product of the will of the legislature. As Nwauche puts it:
It is … conferred on some entities. In other words, a decision is taken as to who should be the owner of and in control of the mineral resources.
An understanding of the repository of the right to resource control otherwise known as control of mineral/natural resources can therefore only come through an examination of the current Nigerian law and its provision in relation thereto. Equitable, progressive and federatively necessary as the quest for resource control in Nigeria may be, it’s greatest challenges and or support must proceed from the language of the relevant laws that govern the subject in Nigeria. We now turn to these laws that are germane to the discourse, whereafter we shall consider some regulatory questions that arise over the quest.
RESOURCE CONTROL IN NIGERIAN LAW
The position of the Nigerian Law on Resource control is contained in some basic/principle enactments whose exhaustive and unambiguous provisions cast an illuminative light on the current position of Nigerian Law on the subject.
As is usual with enquiries of this nature, the first point of examination must be the Constitution, the supreme law of the Nigerian polity. As a federation, the Constitution must vest legislative competence on any matter, on one tier of government or another. In Nigeria, the subject “natural” or “mineral resources” is within the legislative competence of the Federal legislature, standing on the sure foundation of Section 44(3) of the 1999 Constitution which provides that:
“The entire property in and control of all minerals, mineral oils, and natural gas in under or upon any land in Nigeria, or in under or upon the territorial waters or the exclusive economic zone of Nigeria shall vest in the government of the federation and shall be managed in such a manner as may be prescribed by the National Assembly.”
To guarantee the exclusive exercise of this power by the Federal Government, the Constitution further enumerates under the Legislative List, “mines, minerals, including oil fields, oil mining, geological surveys and natural gas” as being within the exclusive legislative competence of the Federal Government.
The above scenario is the current incarnation of the provisions of the minerals ordinance of 1946 which was legislatively retained through independence, later lionized by the first military incursion into politics, and more particularly entrenched in the 1979 Constitution, of Nigeria. The Federal Legislature has since exercised its power under the above provisions, in a number of legislations which form the other legal basis for the current state of resource control in Nigeria. These include: The Petroleum Decree of 1969. This law (Petroleum Act) vests the entire ownership and control of all petroleum in, under of upon any lands in Nigeria, including under the territorial waters, the continental shelf and the Exclusive Economic zone, in the Nigerian State. Lands in Nigeria in or upon which petroleum may be found is unqualified, and so includes all kinds, while the Territorial Waters of Nigeria has been defined for all purposes by the Territorial Waters Act to include
“every part of the open sea within twelve nautical miles of the coast of Nigeria (measured from low watermark) or of the Seaward limits of inland water”.
The only area left, the Internal Waterways, has again been clearly declared to be federal navigable waterways under the management, directive and control of the National Inland Waterways Authority established by the Federal Government, through the National Inland Waterways Authority Decree. Thus all lands and waters within or around the territory of Nigeria are effectively covered and secured to the Federal Government’s exclusive right or power of control and management, by the combined effect of the provisions of the Land Use Act, Territorial Waters Act, Navigable Waterways Declaration Act and the National Inland Waterways Authority Decree.
The offshore resources situate at the continental shelf were again coveted to the Federal Government in 1971 by the instrument of the offshore oil revenue Decree,
Beyond the above legal provisions, the control and ownership of mineral resources were conclusively determined by the enactment in 1978, of the Land Use Decree which radically and colonially expropriated all lands belonging to Nigerians, and vested same in the government of Nigeria to be managed by the Governors of the respective States in the interest of the nation According to S. I. Of the Act,
Subject to the provisions of this Decree, all land comprised in the territory of each state in the federation are herby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Decree.
The above has since been restrenghtened to cover newly dredged and recovered lands through the provisions of the Lands (Vesting etc) Decree of 1993 which vested the title of all lands within 100 metres of the 1967 shore line and all land reclaimed near the lagoon, sea or ocean in or bordering Nigeria, in the Federal Government of Nigeria. In a rather contemptuous manner, S. I. (2) of the Act provides
Accordingly, any purported title to any land referred to in subsection
(1) of this section held by any state or local government, any individual or by any body corporate or unincorporated before the commencement of this Decree is hereby vested in the Federal Government of Nigeria.
The legal effect of these Land Laws is that beyond control of the resources in the land, the government took over the entire ownership in land deeming and certifying individual ownership to be rights to use, thus making them mere licensees holding the lands at the pleasure of the government.
When the Land Use Laws are read together with the Petroleum Act, the Constitution and other relevant Statutes, the effect is clear unambiguous and final. All resources in and around, Nigeria does not only belong to the federal government, but the control and even the land on or in which they are found is also so owned.
The right of ownership and control of natural resources in Nigerian law was for the benefit of doubts, restated in the last days of the last military government in Nigeria. Expressed through the Minerals and Mining Decree of 1999, the law provides that
“That entire property in and control of all minerals, in, under or upon any lands in Nigeria, its contiguous continental shelf and of all rivers streams and water courses throughout Nigeria, any area covered by territorial waters or constituency, the Exclusive Economic Zone is and shall be vested in the Government of the federation for and on behalf of the people of Nigeria.
The section further declares that the government of the federation shall acquire in accordance with the land use Act, all lands in which minerals have been found in commercial quantities. The subjection further empowers the minister to, with the approval of the Federal Executive Council, designate such lands as security lands.
The Supreme Court has most recently confirmed the validity of federal control of natural resources in Nigeria’s continental shelf, when it held in the recent case of AG Federation v AG of Abia State and 35 others, that resources in the continental shelf vests in the Federal Government.
The facts of the case are that, There arose a dispute between the Federal Government, on the one hand, and the eight littoral States of Akwa- Ibom, Bayelsa, Cross-River, Delta, Lagos, Ogun, Ondo and Rivers State on the other hand as to the Southern (or seaward) boundary of each of these States.
The Federal Government contended that the southern (or seaward) boundary of each of these States is the low-water mark of the land surface of such State or, the seaward limit of inland waters within the State, as the case so requires. The Federal government, therefore, maintains that natural resources located within the Continental Shelf of Nigeria are not derivable from any State of the Federation.
The eight littoral States did not agree with the Federal Government’s contentions. Each claimed that its territory extends beyond the low-water mark onto the territorial water and even onto the continental shelf and the exclusive economic zone. They maintained that natural resources derived from both onshore and offshore are derivable from their respective territory and in respect thereof each is entitled to the "not less than 13 per cent" allocation as provided in the proviso to subsection (2) of section 162 of the Constitution.
In order to resolve this dispute, the Plaintiff took out a writ of summons praying for:
"A determination of the seaward boundary of a littoral States within the Federal Republic of Nigeria for the purpose of calculating the amount of revenue accruing to the Federation Account directly from any natural resources derived from that State pursuant to section 162(2) of the constitution of the Federal Republic of Nigeria 1999."
All the States in the Federation were joined as defendants in the action. The parties, except the 29th and 30th Defendants, that is, Osun and Oyo States, filed and exchanged their respective pleadings. Some of the Defendants raised counter-claims against the Plaintiff. The pleadings of the Plaintiff and the eight littoral Defendant States reflected their respective viewpoints in the dispute. Some of the defendants raised in their pleadings, a number of objections such as there being no dispute, misjoinder, lack of jurisdiction etc. All these objections were taken at an earlier hearing and disposed of.
The Supreme Court in a Judgement of the Court
Delivered by Michael Ekundayo Ogundare. J.S.C, held In summary, that among others;
Plaintiffs case succeeds and I hereby determine and declare that the seaward boundary of a littoral State within the Federal republic of Nigeria for the purpose of calculating the amount of revenue accruing to the Federation Account directly from any natural resources derived from that State pursuant to section 162(2) of the Constitution of the Federal Republic of Nigeria 1999, is the low water mark of the land surface thereof or (if the case so requires as in the Cross River State with an archipelago of islands) the seaward limits of inland waters within the State.
The decision would have been the same even if the question were resource control in general. The Supreme Court ruling is of course right. The Supreme Court has read the law properly, stating the law as it is. It must be realised that the responsibility of the Court is juridical and not jurisprudential. The Court is to interpret the meaning of the language of the law as presently couched and not to rewrite or amend them or declare them wrong choices of words. It is not to declare whether the law as it is, at the moment is proper, just, and equitable or not but to state what they provide and at best whether they have been validly made by competent legislatures. To expect otherwise from the court is to be sentimental and not juridical. The court has therefore done its work. It is for “we the people” of the Federation to activate the political process towards rewriting the law and steering our nation towards the paths of true federalism. When this is done and the language of the statutes reflect it, this same Supreme Court, which ye hear today, shall, when consulted,surely speak in other tongues.
The question of law discussed above, is one part of the challenges of Resource control in Nigeria, the other part is the question of regulation. Assuming that the rules were changed today, divesting the Federal Government of the exclusive right of Control, who would take over the control? The pertinent issue about this question is the fact that it is feared that if the State assumes the role, the Local Government is likely to continue a new phase of agitation with communities challenging local Governments and families challenging Communities, and the individual having his own claim thereafter against the family. This fear has been expressed by many, these are reasons that appear quite cogent and real. It has therefore been suggested that the current legal regime on resource control is justified if only to save the oil producing “minority” region from self-destruction.
It is however our reasoned opinion that this regulatory problem is more apparent than real. Two reasons are adduced to explain this opinion. First the problem comes from suspicious quarters, as it has always arisen from the centripetal forces of the Nigerian Society who currently benefit exclusively from the status quo. Although their brotherly love towards their brother minority region cannot be questioned, their present attitude towards their beloved “producing” brother region is far from lovely and endearing. It would therefore appear to be more of a selfish than genuine problem.
The second reason is that if the rules are changed today, the state legislatures which are more directly constituted by the producers representatives, can evolve state laws that will either make such interest groups as Local Government, Communities families and individuals, joint stakeholders and investors in the process of exploiting the resources, or affirm the right of such stakeholders to invest in the sector solely or in partnership with a local or foreign investor.
The problem can again be addressed through a federal legislation that recognizes the right of each stakeholder to develop its natural resources by itself, or in joint partnership with other stakeholders or investors, any resources within it’s property subject to the relevant tax and other regulatory rules of the Federal and relevant State Governments as is the case in some other jurisdictions. In this case the owner of the resources in question becomes the relevant stakeholder. The importance of this view lies in the fact that the peoples involved are most likely to protect the investment, as stakeholders than as marginalized and disinterested host.
Conclusively, clearly and exhaustively, the Nigeria law as shown above, expressly vests with every available language, the ownership and control of resources in the Nigerian State on the Government of the Federation of Nigeria. Why then the agitation for a different form of resource control regime? What is wrong with the current legal regime on resource control? Is there need to rethink the current position of the law on resource control? These questions call for attention.
THE IMPACT OF CENTRAL CONTROL OF RESOURCES ON THE NIGERIAN STATE 
The impact of the present position of Nigerian Law on resource control is astounding and highly under developmental. From the formulation of wrong polices to fraudulent implementation of state programmes, Nigeria has progressively squandered its economic potentials and its peoples peace and sentiment of citizenship. These impacts may be summarized as follows:
The government of the federation of Nigeria has from centralizing resource control, assigned to itself, too many functions which in federalism are usually the responsibility of the unit Governments of the Federation, thus biting more than it can actually chew. This has overwhelmed successive governments in Nigeria, leading to lack luster performance or, to be more accurate, non-performance of government.
The centralization of resource control in Nigeria has made the central government too big, too powerful and too attractive. As they say, everyman’s food is no man’s food and so the colonial centralization of resources at the center without an imperial home country to ship same to, has created an attractive pool of no man’s economic wealth sought after by the greedy. This, as has been observed has rendered politics in Nigeria hobbesian and entrenched corruption into every facet of life in the Nigerian nation. The violent and shameless greed with which federal offices are pursued in Nigeria is a direct consequence of this factor. Too much wealth in the center has turned it to a gold mine where gold diggers aspire to go and “share national cake” and to appropriate to themselves, as much of it, as they can.
Economic Alienation Of Citizens:
In order to perpetuate federal control of resources, the Federal Government has over the years effectively sidelined its citizens in the development of the nation’s economy. It has kept both State Governments and citizens away from the main sector of the mono-sectoral economy, preferring foreign investors who provide ready cash to service the insatiable desires of the beneficiaries of every government in power. Accordingly, like political democracy, industrial democracy is extinguished as government policies appear to address increasingly, the needs of foreign investors than provision of the enabling environment for citizens to participate in the development of their nation’s economy, it, at the same time, stifled the development of entrepreneurship without which meaningful national economic development can not be achieved. The total impact of the above scenario is underdevelopment, excruciating underdevelopment. For a nation better endowed with natural and human resources than most others.
The present state of resource control in Nigeria has promoted external dependency and foreign control of the Nigerian economy. Oil is the mainstay of the Nigerian economy, it accounts for over 80% of the economy. As Okagbue observes as at 1985 ten companies had been licensed to prospect for and drill petroleum products in Nigeria, all ten companies were foreign without a single exception. They thereby controlled 90% of the Nigerian economy, and accounted for over 80% of the governments revenue. The later licensing of a few indigenous companies such as Summit Oil, Dubri Oil and Consolidated Oil has not altered the economic consequence of this state policy as they have little or no impact on the foreign control of the economy. This leaves the foreigners in a position to affect any government in Nigeria adversely by manipulation of the economy. They can create socio political problems, at will, and procure the over throw of governments at will. This perhaps explains why Nigerian governments listen to foreign advisers of the nature of IMF and the Bretton Woods Institutions more than the internal views of its enormous skilled human resources, many of whom are held in high esteem around the world.
The centralization of resource control has left local resources and its management at the hands of the Federal Government. As adumbrated above, non-indigenes and foreigners, often in utter contempt and disregard of the indigenous or local communities life, welfare, safety and ecology, have largely exploited this. For a highly ethnic nation like Nigeria, the government official and company staff are consequently seen as a predative duo, feeding fat on the wealth of the local host who increasingly gets pushed further below the poverty line, and whose environment continues to degenerate with exploration activities. This is the root of the Niger Delta crisis, among many other crises now engulfing the country.
Similarly, the “sharing of the national cake” has generated serious disagreement, discontent and distrust among the numerous ethnic nationalities of the federation including even those perceived as the major ethnic controllers and beneficiaries of the Nigerian State. It has created ethnic distrust, implosive ethno-nationalism, lack of faith in the federation and thus threatened the very fabrics of the nation’s cohesion and existence.
The vesting of ownership and control rights in the Federal Government of Nigeria has engendered severe degradation of the environment in the parts of the country where Oil and Gas exploration activities occur. The Central Government far withdrawn from the centres of activities are oblivious of the chronic health, life threatening and ecological damages that is suffered by the unfortunate host regions. The Government is therefore preoccupied with issues of maximum derivation of resources and how to increase exploration activities, without adequate measures to ensure that participants in the sector conform with National and International Safety Standards. The effect of Gas flaring on man, flora and fauna are too well known. Suffice it to say that it devastates the entire environment and subjects the people of the host communities to installmental decimation.
The present state of resource control in Nigeria has been a major gasoline overheating the political process. It has been behind every military coup as the “militaricians” cite corruption as the sin of the overthrown civilian governments, and the civilians cite treasury looting as the sole objective and consequence of military rule. It is common knowledge that both claims are right and both claimants guilty of the same crime – national plundery. This has been made possible by the accumulation of wealth in the center, under a political management that leaves no structure for effective utilization and policing of presiding officers of state. The clear victim is the nation and its people who are both denied the benefit of independence and the effective exercise of the right to self determination, development and democratic leadership.
The current government at all levels shows little sign of having learnt any lessons from the chequered past of the Nigerian nation. The impact of federal control of resources is still evident, with the legislature, Executive and even subsidiary governments neck deep in the “dance of death” with corruption and insensitivity to pressing national issues. Views may differ on the extent, but it is common knowledge that corruption, distracted or misfocused government and the looming anarchy that now dangles over the 2007 and subsequent elections, are direct result of the compulsive attraction the resource controlled by the central government of our federation holds out to the political class.
The above impacts are not just unhealthy and counter productive, they are dangerous, needless, avoidable and presently reversible.
RESOURCE CONTROL IN OTHER JURISDICTIONS
A survey of other jurisdictions reveals that control of mineral resources in various nations occur in either of three ways. These are public or government control in absolutism, (2) Private or individual control and (3) Joint Control or existence of public and private rights of ownership and control. These methods of control and the respective jurisdictions that practice them are discussed hereunder:
PUBLIC CONTROL OF RESOURCES:
Public control of resources occurs where the ownership and or right of control vests in a sovereign state acting through its government. This is usually achieved by providing in the constitution or statutes of the country, for the rights to vest in the government of the country.
Leading examples of countries that have adopted this approach include Algeria, Angola, Equatorial Guinea and Ghana. Nigeria of course falls colossally within this group. The scope of the resources covered in these States, may of course differ slightly, but it is usually generally of the nature of the provisions of Article 17 of the Algerian Constitution which provides that Public property is an asset of the national collectivity. It encompasses the subsoil, the mines and quarries, the source of national energy, the national maritime zone, the waters and the forests. On the ambit of the law in these jurisdictions, the Angolan Constitution provides a classical example. According to Article 12 thereof,
All natural resources in the soil and subsoil, in the territorial waters, on the continental shelf and in the airspace shall be the property of the state”.
Similarly, the Constitution of Ghana provides:
“every mineral in its natural state in under or upon any land in Ghana, rivers, stream, watercourses throughout Ghana the exclusive economic zone and any area covered by the territorial sea for the continental shelf is the property of the Republic of Ghana and shall be vested in the president on behalf of and in trust for the people of Ghana.
In these countries individual ownership of land precludes mineral in them.
PRIVATE CONTROL OF RESOURCES:
Private control of resources occurs where the right to own and control the exploitation of resources in property vest in the persons who own the property in which they are found. Leading examples of African Countries in this group, include Botswana Namibia, Gabon, Bourkina Faso and Benin republic. For example the Nambian Constitution provides that the state or any competent organ may expropriate property in public interest only subject to the payment of just compensation according to law, and vests natural mineral resources in the state only where it occurs on a land not already otherwise validly owned by a person.
On a similar note, the Botswanan Constitution provides that no property of any description shall be compulsorily taken possession of and no interest in or right over property of any description shall be compulsorily acquired, except where it is necessary or expedient in order to secure the development and utilization of the mineral resources of Botswana, and provision is made for the prompt payment of adequate compensation.
MIXED CONTROL OF RESOURCES
Control in a jurisdiction is mixed, where the legal system permits both public and private ownership. Here, the state can own and control natural resources especially on government – owned lands, while the other legal persons such as individuals co-operate and incorporate bodies and units of the government enjoy the rights of resources ownership and control. Notable nations here include Australia, the United States, Canada and Northern Ireland.
In Australia, where mineral resources occur on public lands, they are owned and controlled by public authorities, while those that occur on or in private lands are equally so privately owned and controlled by such private landowners. Public ownership vests on the public authority especially from a system of prerogative mineral rights developed during the 19th century and the policy of reservation of minerals from crown land grants, whereby minerals found on public lands granted to private persons, will remain property of the Australian government.
Private ownership on the other hand, results from the common law rule of “Quic quid plantatur solo solo cedit” whereby he who owns a land owns all that is above and beneath it. Such private rights are often enjoyed in full, complete with right to
veto development, while the law however provides for the public acquisition of such lands for development of the resources, subject to payment of adequate compensation.
It is important to state here that the commonwealth of Australia retains complete ownership of petroleum resources wherever found within Australia. Similarly, all precious metals within Australia is as established in the case of mines, owned by the Australian State, including all gold mines and silver mines whether on public or private land. This also applies to minerals in offshore jurisdictions. Australia finally recognizes an aboriginal ethnic right to exercise a good degree of control over minerals explorations within their lands. This right which can only be over ridden in public interest, varies in degree of application from one Australian State to another.
The United State of America offers yet another beautiful example. Mineral resources ownership vest in private and public forms respectively. Minerals on private land, vests in the landowners, who control its exploitation according to the rules of contract, while minerals on public land are owned and controlled by the various state governments. Where however such public land is one owned by the Federal Government, the right and control vest in the government of the Federation.
Like Australia, where public land is acquired by a private owner, he owns and enjoys all rights over it, save the right over mineral resources found thereon, as that remains property of the US government.
Minerals in the continental shelf, generally vest in the Federal Government of the US, which controls and develops same for the US. This situation remains so in virtually every other federation or state. Including Canada and Northern Ireland.
Federal vestige, we believe, derives from the fact that the continental shelf enjoys a peculiar characteristic as a jurisdiction of international law, a sovereign state’s claim against the international waterway, one which therefore inures in the sovereignty of the state and not a part therefore unknown to international law especially for that purpose.
Again it is important to state here that the vesting of ownership as shown above among other jurisdictions, must not be taken as confirming or justifying the manner of control in Nigeria. There is a wide gulf of difference between the similarity of law on ownership and its implementation. The US situation for instance, does not leave actual exploitation in US federal corporations as in Nigeria, neither does it preclude its people from participating effectively in all sectors of the industry, unlike the Nigerian situation where federal control effectively excluded indigenous participation in preference of exclusive foreign control.
A stronger point of difference yet, is in the manner of computing of the extent of federal ownership of such offshore located resources. In a manner that classically differs from the Nigerian situation and especially illustrated by the above named supreme court decision, the coastal states retain ownership of resources within three nautical miles of the outer continental shelf, except in Western Florida and Texas where state lands extend to the 9 nautical mile line. Federal territorial waters only begin after the nautical miles aforesaid.
Finally, the disbursement of the revenue derived from the waters designated as federally owned, still shows great departure from the Nigeria situation. As at 1999 a legislation introduced at the 105th congress of the United State, allocated half of the rents, royalties and bonuses derived from the federally owned outer continent shelf to the coastal states from which they extend. As Lawrence Kumins observes,
This allocation has a parallel in the on-shore revenue programme for production from federal lands. With on-shore revenues, 50% is allocated to the state in which the lease is located, and 40% is earmarked for the reclamation fund. Only 10% goes to the Treasury.
This is indeed a great departure from the Nigerian context of federal ownership and control. It is clearly a more equitable and federatively correct approach to offshore wealth management in federations. A manifest example greatly recommended to our nation.
RESOURCE CONTROL AND INTERNATIONAL GUARANTEES:
The African charter on Human and peoples rights, in articles 19-24 provides respectively for:
- Equality of all people
- People’s right to self determination
- People’s right to feely dispose of their wealth and natural resources
- People’s right to development
- People’s right to national and international peace and
- People’s right to a satisfactory environment.
These provisions are, to all intents and purposes, geared towards pro-democratization of resource control in African State.
The pertinent question here has of course been the question whether “peoples” are used in the charter referred to the collectivity of citizens in an African State which refers to nations or people in the sense of community of persons sharing ethnic and other affinities, in which case it refers to ethnic peoples groups and communities within an African State.
Traditionally, three views exit on this matter. While one school supports the view, arguing that ‘peoples’ refer to citizens of a state in their mass as a sovereign people represented by their government, the second school supports amendment of the first view that peoples in the charter refer to the entire civil society of an African State in mass, distinguished from their government while the third school supports reference to ethnic and geographic peoples within the African States.
We have no doubts that the African Charter set out in the first place to proclaim human right of a distinct character. One that is autochthonous and reflective of the traditions and sentiments of the peoples of Africa who co-incidentally, share similar characteristics of ethnicity religion and the political character of being wedged together into modern statehood by external colonial forces that sought to undermine their socio-cultural realities. It is therefore a charter in proclamation of African traditions where individuals do not only have right but commitment (duties) to their nation, a tradition which recognizes the ethnic identities dear to the peoples of Africa, an expression of hope that through respect for its individual and ethnic diversities, African states can find an over-all national peace, freedom and development for its peoples.
We therefore believe that “people” in the Africa charter refers to the ethnic peoples and or groups who were associated together to form the peoples of the modern African states. It is therefore not a minority protection devise, but a general protection of the right of all ethnic peoples of Africa, majority or minority, to meaningful existence, self expression and realization through the well known international principle of self determination,sovereignty over natural resources, and sustainable development, principles which are the cardinal pillars of federalism.
The validity and applicability of this law in Nigeria has now been settled in the landmark decision of the supreme court of Nigeria in Abacha and others v. Fawehinmi. Where the apex court confirmed that the charter is not just valid, but with exception to the constitution, enjoys higher respect than other statutes, as a statute with international flavour.
Other international instruments which point to the global direction of the conception of peoples entitlement in a modern state, include:
- The international Covenant on civil and political rights.
- The international covenant on Economic, Social and Cultural rights
- Declarations on the right to Permanent Sovereignty over National Resources
- Declaration on the right of persons belonging to Natural or ethnic, Religions and Linguistic minorities
- Convention Concerning Indigenous and Tribal peoples in Independent Countries and the Declaration on Right to Development,
- Article 1 of which provides in words unmistakable in clarity:
(1) The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social cultural and political development, in which all human rights and fundamental freedoms can be fully realized.
(2) The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both international covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.
And Article 2 (3) of which further provides that states have the right and duty to formulate appropriate national development policies that aim at the constant improvement of the well being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting there from.
These international instruments taken together, clearly show the direction of global thought and vision of what a modern people are individually and collectively, entitled to in the modern African States (Nigeria inclusive). The juridical value of such instruments was expressed in Halsbury’s Laws of England thus
“The fact that rights and obligations etc arising directly under community law are transformed into enforceable community rights and obligation under the European Communities Act 1972 has consequences in domestic law. It would appear that in so far as a community obligation gives rise to rights in favour of individuals, breach of that community obligation becomes in English law a breach of statutory duty imposed for the benefit of private individual to whom loss or damage is caused by a breach of that duty. Thus a breach of a provision of community law giving rise to individual rights may constitute a cause of action in English private law as a breach of a statutory duty”.
This view is supported by Lord Denning (MR.) who in one of his decisions on the applicability of the Treaty of Rome in England, concludes:
“It is by statute part of the law of England it creates rights and obligations not only between member states themselves, but also between citizens and the member states, and between the ordinary citizens themselves and the national courts can enforce those rights and obligations”.
This is true of community rights in England, It should be true of the value of the African charter and other relevant international instruments in Nigeria. What is at stake is not national sovereignty, but human development and peoples progress. The law and State, we must remember, are the people’s and their major aim, to serve them, to protect and empower them towards their self realization and perfection.
THE NEED TO RETHINK NIGERIAN
LAW ON RESOURCE CONTROL
Now in its 45th year of independence, the Nigerian state has failed to justify its enormous endowment with natural and human resources. The country has literarily failed to develop as it continues to labour under the regime of unfair, colonial-like and self-abnegating legislation. The Country has had the best of dreams, (policies), expressed in the best of languages but lacked the political structure and will to bring the dream policies into a reality that positively reflects on the lives and living condition of its people.
The Nigerian Federation is fundamentally defective, bedeviled by a complex assortment of Acquired Federative Deficiency Syndrome (AFDS) contracted from repeated bouts of infliction with leadership and legislations acutely/suffering from Acquired Inheritance Defence Syndrome (AIDS). As Ake reasons from a political economy context, and we verily agree with him, this mal-development results from our greedy attraction to control of enormous powers which led Nigeria to transmute from a colony to an independent nation, without diffusing the strong centralist unitary structure and mentality of colonial government which it could have done by indigenising the state through a restructure and reorientation of the power balance mental attitude and political paradigms, towards indigenous and development positive directions.
The present position of Nigerian law on resource control is derived from colonial centralist policies of pulling all the wealth in the colony to the center for onward transportation to the home (imperial) country. It has survived till date through legislations enacted overtly for purposes of ensuring judicious management of Nigeria’s resources and even development of Nigerian regions, but covertly out of every incumbent government's desire to retain great and awesome economic powers once enjoyed by its predecessor, colonial or indigenous, democratic or dictatorial. Beautiful languages have always heralded their enactment, while the nation has lagged far behind its pace and spirit of development enjoyed in the first republic 1960 – 1966 when greater degree of federalism was practiced in the country.
It is important to note that virtually all of these rather predative laws were enacted by the military, a unitary outfit built around a vertical formation where commands proceed from the superior (top) to the rank and file. They are inapplicable, contradictory, unfederative and unsuitable for a self-governing democratic federation. This is confirmed by the fact that more progressive states follow a different practice.
QUO VADIS NIGERIA?
The current position of Nigerian law on resource control, defeats the modern global view of self determination and the right to development, and satisfactory environment and most of these laws may be regarded as international principles and custom, but they at least represent the global standard of good living, they reflect the current phase of the march of mankind, the idea of the human family set for attainment by nations of the world. It is not only the social or moral duty of any nation, but the legal responsibility of every state to bring its people into the future fully equipped to meet it’s challenges, enjoy the highest rights possible and to claim a place in the world of their time.
If Government policies must be progressive and people oriented, it must therefore move in the above direction, to create the enabling environment for a people oriented development. We have shown in this chapter, that Nigeria is presently not headed in this direction. We believe that a reversal of policy orientation is required, and a total rethink of the structure and pattern of resource control is imperative to that effort. Accordingly we conclude this part in the next chapter by recommendations which we believe, can turn around the dwindling fortunes of the Nigerian state and its people.
TOWARDS EFFECTIVE RESOURCE CONTROL IN NIGERIAN LAW
- Nigeria is a Republican Federation, and should see its national developmental needs to manage and control resources, as a need to enable federative units control and exploit their natural resources in a safe development – positive manner that will enhance their access to scare resources and at the same time, enhance the nation. Accordingly, Nigerian laws like the Land Use Act, petroleum Act, etc being undemocratic and unfederative, should be amended or repealed where necessary to allow the citizens and constituent units unhindered participation and reasonable control of their natural resources and economic destinies in line with the trends and aspirations of other progressive federations as shown here above.
- In furtherance of the above, the United States should be the model after Nigeria’s heart, as it allows resources in its world-renown federation to be owned and controlled by federal, state and local government as well as private citizens according to their location. This is consistent with the federal culture, which within the context of one nation, allows constituent members to direct their own affairs and pursue their own development.
- The control of mineral resources should be excised from the exclusive legislative list of the Nigerian constitution and transferred to the concurrent list to enable states participate in the exploration and management of these resources. This participatory right to control should be available to other federative constituents such as the local government. Community, the family and private individuals.
- The function of the NNPC should be regulatorily confined to general matters of safety, avoidance of economic sabotage, and management of petroleum resources in Federal territories such as the Federal Capital city, the continental shelf, any land owned by the federal government and any other places which either by international or democratic municipal law, falls within the jurisdiction of the government of the federation.
- The relevant law should empower states to constitute their own resources regulatory agencies, with which to monitor and manage mineral resources in their region, subject only to the payment of agreed tax to the federal government and observance of federal safety rules.
- Economic development is at the root of resource control. Nigeria must take steps to redefine its philosophy of national economic development from a state-driven, to citizens-driven philosophy. To do this, Nigeria must seek to develop by developing it’s citizens. The aggregate of whose satisfactory living condition should form the criteria for measuring national development.
- Deliberate steps must be taken to steer the nation toward proper fiscal federalism. The present “food is ready” economy whereby federative units are enslaved to cake sharing” instead of value generation, discourages industry and sustainable development. It promotes undue dependency on petroleum products, the politics of which breeds inequity, and ethnic distrust, which in turn, overheats the polis.
- Nigeria should break the currently prevailing mono economic culture, and begin to develop its numerous other natural endowments such as the Agricultural resources, which once ruled the economy and which exists throughout the country. These are main revenue earners in other nations, and if well managed can catapult the nation from one of the debt-ridden countries of the world, to a major credit generating nation.
That there is no legal basis at the moment to justify the demand for regional control of resources is a hard fact but that this fact does not represent our democratic feelings nor our federative expectations is the home truth. So many predative provisions in so many laws saying the same thing all over again, is an indication that an unaffected legislator far withdrawn from the polis and the spoils of his legislation, is at work, churning out laws that in every democratic and federative sense, are preposterous and unashamedly exploitative.
This research therefore recognizes that the issue is more jurisprudential than juristic. It calls for a patriotic and equitable re-examination of our fiscal jurisprudence and demands unflinching patriotism in the search for answer. What we need is productive resource control, not just development in the sense of house and bridge building, a noticeable leap in the standard of living in the country. Thus, people and not federal accounts must be the object of improvement.
If that were ever our goal and if that goal were ever to be realized, it will be by Government at all levels, rethinking development, rethinking the philosophy of resource control and management, and legally enhancing the capacity of the federative units and peoples’ to improve their living standard, not by a Governmental effort at putting bread on the people’s table, but by democratizing the right of access to the means of achieving that lofty ideal -resources. We must remember and be guided by the instructive observations of Alexis de Tocqeville concerning the economy of democracies. In his words;
In democratic countries as elsewhere, most of the branches of productive industry are carried on at a small cost by men little removed by their wealth or education above the level of those whom they employ. These manufacturing speculators are extremely numerous; their interests differ; they cannot therefore easily combine their exertions. On the other hand, the work men have always some sure resources which enable them to refuse to work when they cannot get what they conceive to be the fair price of their labour. In the constant struggle for wages that is going on between these two classes, their strength is divided and success alternates from one to the other.
This will not just engender improved individual circumstances, it will not only ensure national development, but will ensure sustainability of development in an atmosphere of peace and equity devoid of rancour and corruption. By that singular change, we shall be creating an enduring society of innumerable value creators, in place of an oligarchy of cake sharers eating themselves to stupor from a cake that they neither baked nor bore the heat of the baking. As Alex Boraine has instructively warned, and we verily and conclusively agree with him,
“The best constitution in the world cannot survive civil unrest brought about by deep-sittted poverty, grievances and unfulfilled expectations. Economic development and progress must go hand in hand with political change”
CENTRIST RESOURCE CONTROL AND THE NIGERIAN OIL AND GAS INDUSTRY
The stumbling upon oil in the Nigerian earth’s bowel in about 1951 – 1956 turned out to mark the beginning of a new era of energy source production for the country. Not just a commossn era but one that was going to have significant impact on the world market place. By the end of the eighth decade of the last century, crude oil the principal source of petroleum and allied energy bloomed. This marked the advent of petro-dollars for some nations, and the pervasive spread of petro dollar based corruption of a democratized magnitude among such nations a notable one of which is Nigeria.
Just as a fourth dimension scatters a three dimensional concept; so the oil and gas industry has fast replaced Agrarian superiority. Described as the future of the world, its rebound in billion dollars has made it the most coveted of modern minerals.
In Nigeria, the search for oil began as far back as 1908 and was first legislated upon in 1917 the later laws of 1946 and the petroleum Act of 1969 decidedly vested ownership of all oil resources on the government of the federal republic of Nigeria. Providing with an unmistakable clarity, section 1 (1) of the petroleum Act which is currently the principal regulatory law on oil and gas in Nigeria; provides
“The entire ownership and control of all petroleum in under or upon any hands to which this section applies shall be vested in the state”.
Land as contemplated in the Act, covers all varieties of land, including “under water” and over and under the ground. In addition to the scope described above, the exclusive economic zone (EEZ) also forms part of the scope of land over which state ownership applies.
While the plausibility and equity of the above position has been called to question, considering its colonial and expropriatory character, this paper avoids the controversy as it is delimited to, and concerned with another, viz development implication of the policy and practice in the oil and gas sector. Thus it shall leave that aspect to be best treated under a befitting heading as subject matter of a distinct inquiry. In this paper, focus shall be directed at the development patterns of the Nigerian oil and gas industry, the developmental impact of identified problems in the sector and the need for a more effective and participatory involvement of Nigerian citizens in the development of Nigerian oil and gas industry in an atmosphere devoid of industrial disharmony.
THE PECULIARITY OF THE OIL AND GAS INDUSTRY
The oil and gas industry in Nigeria exhibits two serious and peculiar characteristics. Like all such sectors around the world, the industry is both a high risk and a capital intensive sector. The cost of prospection is put at millions of Naira and this is a pre production inquiry that may result in a dry well, without oil or gas to exploit, which would mean that the entire millions invested in that enquiry goes unrewarded, completely wasted.
The effect of this cost intensive characteristic is that the industry is only available to operators who can muster up the required billions of naira to stay in the industry. Consequently most citizens are left handicapped and incapable of participating in the sector, irrespective of the degree of interest and technical know-how they possess. The second effect is that it has left the sector mostly dominated by foreigners, multinational companies and corporations that possess investable capital to the high degree demanded by the industry. While we can not say with certainty that the states are equally incapacitated from investing in the sector, we must admit that the statutory stipends handed monthly to the states could not have been safely invested in the industry as the stipend serves immediate social services such as salary payment and sundry service payments. Thus, even the unit states become ill-equipped to invest in the sector in view of their enormous social responsibility and its capital intensive nature.
The second unique feature of the sector is its high risk character which demands the highest possible standard of safety. All over the world, the oil and gas industry is recognized as being about the riskiest of the risky industries. Responsible nations and governments impose scrupulous safety standards, while their breach attracts the stiffest penalty possible8. At the global level, the conservation of biological diversity is a common concern of human kind an issue in respect of which all states must co-operate in search of solutionA. Thus there is an international safety standard in effect and its demands on participants in the sector are correspondingly high. That this stringent measure is necessary is illustrated by the dire consequences of error in the oil and gas sector. Like action which speaks louder than words, the Bhopal gas leak incident in India which wrecked grave havoc of monumental proportions in terms of human, material and environmental costs, best describes the extreme gravity of breach in the gas sector, while oil leakages and gas blow-outs extol no less havoc on men and the ecology. These factors perhaps have informed government participatory pattern in oil and gas development in Nigeria.
THE OIL AND GAS SECTOR IN THE NIGERIAN ECONOMY
The Nigerian economy has over time grown from a multi-sectoral to a mono-sectoral economy. Oil and gas is not just the major sector of the economy, it is to all intents and purposes, the Nigerian economy. Coming from a relatively obscure position at Nigerian Independence in October 1960, the sector grew in leaps and bounds and by the late 1970s had overtaken the entire economy, leaving the previous main-stays of the economy – cocoa; palm oil and groundnut in a comatose state in which they have remained.
Oil and gas currently represents over 90% of the Nigerian economy, and accounts for over 80% of the nations revenue. It has overshadowed the Agricultural sector and relegated every other source of revenue in the economy to an insignificant second place. Nigeria is currently rated as one of the worlds leading oil producing countries with the recent development of the natural gas sector pushing it up on the scale of energy source producing nations.
Oil and gas has had great impact on the Nigerian economy since its inception. Beside changing the economic character of the country from an agrarian, to energy producing country, oil and gas has raked in so much money that Nigeria upon the maturity of the sectors has been counted as one of the most endowed nations that should rank among the most affluent. That Nigeria is not yet there, would appear not to be a result of inadequacy of resources, but a function of mismanagement, corruption and the economics of prebendal politics, which unfortunately also came in the wake of the oil boom.
REGULATION AND PARTICIPATION IN THE OIL AND GAS SECTOR
Regulation of the oil and gas industry in Nigeria is an exclusive preserve of the government. The operative policies in the sector are to be found in the provisions of several laws that have been enacted across time by the government of the federation in exercise of her constitutionally vested powers: These include laws such as:
- The Oil Pipelines Act of 1956 as amended in 1965.
- The Mineral Oils (safety) Regulation of 1963
- The Oil in Navigable Waters Act of 1968
- The Oil in Navigable Waters Regulation, 1968
- The Petroleum Act of 1969
- The Oil Terminal Dues Act of 1969
- The Petroleum (Drilling and Production) Regulation 1969
- The Associated Gas Re-injection Decree of 1979
- The Federal Environmental Protection Agency Decree of 1988
- The Harmful Waste (Special Criminal Provisions etc) Decree, 1988
- The Environmental Impact Assessment Decree of 1992
- The Nigerian National Petroleum Corporation Act of 1990
These laws collectively, declare ownership of the resources provide for licensing of operators, set safety standards and protect the environment, regulate activities in the sector, establish monitoring agencies and prescribe civil or penal liability as the case may be. These policies are of course on ground. Whether or not they are functioning effectively is certainly open to debate. While we may admit that ample legal provisions have been made, it remains apposite to state that the implementation of the laws still leave much to be desired 10A and adversely affects the nations desire to attain meaningful development of a sustainable character.
Regulation of the oil and gas sector is vested in the Nigerian National Petroleum Corporation established under chapter 320 of the laws of the Federation of Nigeria 1990. Headed by the Federal Minister for Petroleum Resources, who is the chairman, the corporation comprises the following other members:
(a) Director – General, Federal Ministry of Finance and Economic Development.
(b) The Managing Director of the Corporation; and
(c) Three persons to be appointed by the National Council of Ministers, being persons who by reason of their ability, experience or specialized knowledge of the oil industry or of business or professional attainments are capable of making useful contributions to the work of the corporation.
The corporation is empowered to engage in all commercial activities relating to the Petroleum industry and to enforce all regulatory measures relating to the general control of the petroleum sector through its petroleum inspectorate department. The corporation is further charged with the duties of:
- Exploring and prospecting for, working, winning or otherwise acquiring, possessing and disposing of petroleum;
- Refining, treating, processing and generally engaging in the handling of petroleum for the manufacture and production of petroleum products and its derivatives;
- Purchasing and marketing petroleum, its products and by-products;
- Providing and operating pipelines, tanker-ships or other facilities for the carriage or conveyance of crude oil, natural gas and their products and derivatives, water and any other liquids or other commodities related to the corporation’s operations;
- Constructing, equipping and maintaining tank farms and other facilities for the handling and treatment of petroleum and its products and derivatives;
- Carrying out research in connection with petroleum or anything derived from it and promoting activities for the purpose of turning to account the results of such research;
- Doing anything required for the purpose of giving effect to agreements entered into by the Federal Government with a view to securing participation by the Government or the Corporation in activities connected with petroleum industry in the overall interest of Nigeria; and
- Undertaking such other activities as are necessary or expedient for giving full effect to the provisions of this Act.
The Act further sets out powers of the corporation as including inter alia;
- To purchase or otherwise acquire or take over all or any of the assets, business, properties, privileges, contracts, rights, obligations and liabilities of any other company, firm or person in furtherance of any business engaged in by the corporation;
- To enter into contracts or partnerships with any company, firm or person which in the opinion of the corporation will facilitate the discharge of the said duties under this Act; and
- To establish and maintain subsidiaries for the discharge of such functions as the corporation may determine.
A very significant provision in the Act, is the establishment of the Department of Petroleum Inspectorateto be headed by an official to be appointed by the Petroleum Minister. It is an integral part of the NNPC charged with the regulatory responsibility of;
- Issuing permits and licenses for all activities connected with petroleum exploration and exploitation and the refining, storage, marketing, transportation and distribution thereof; and
- Acting as the agency for the enforcement of the provisions of the said Acts and any relevant regulations made there under by the minister;
- Carrying out such other functions as the minister may direct from time to time.
The major responsibility of the department therefore, is to regulate the activities of all persons and entities who are interested in participating in the up stream or down stream sector of the petroleum industry.
In exercise of the powers granted the corporation under the Act, the NNPC has established subsidiaries to handle different aspects of its responsibility under the Act. And in discharge of its duties, NNPC has also gone into joint venture agreements with selected companies, to exploit the Nigerian oil and gas reserves for commercial purposes. Possessing 60% of the equity share of previous licencees in the sector, the NNPC in 1977 joined the major producing companies in the development of the petroleum sector in Nigeria. The leading operators as at 1985, were
- Shell Petroleum Development Company Nigeria Limited
- Gulf Oil Nigeria Limited
- Mobil Oil Nigeria Limited
- Philips Oil Company Nigeria Limited
- Nigerian Agip Oil Company
- Texaco Oil
- Cheveron Oil
- Elf Nigeria Limited
- Ashland Oil Nigeria Limited
- Pan Ocean Oil Company (Nigeria) Limited
Following criticism and outcry for opening up of the sector to indigenes, some more companies have been licensed. These include:
- Summit Oil
- Dubril Oil and
- Consolidated Oil
These companies are all indigenous in character as distinguished from the first category of foreign companies, which are really the main operators in the sector.
DEVELOPMENTAL IMPLICATIONS FOR THE OIL AND GAS SECTOR
Development is a concept, which has assumed pivotal position in modern polemics and socio-economic discourse. Recognized globally in 1986 as an inalienable human right, the expression development describes the process of accessing a higher, fuller and richer standard of living by personal or indigenous effort. Development is a process and not a project. As Ake has observed, it is the process by which the subject matter recreates its life circumstances by attaining through self effort, higher and richer standard of living in accordance with its needs, values and aspirations. It thus stresses self-propelled elevation, for a circumstance to be development, it must therefore be uplifting and result from self effort of the developer.
The challenge of development in the broadest sense is to improve the quality of life. At the level of the individual, development implies increased skill and capacity, greater freedom, creativity, self discipline, responsibility and material well being, while at the collective level, a society develops by recording a generally better quality of life which manifests in higher incomes, and encompasses as ends in themselves, better education, higher standards of health and nutrition, less poverty, a clean environment, more equality of opportunities, greater individual freedom, and a richer cultural life.
In effect, a nation develops when its citizens by their own effort, and indigenous industry, stimulate the attainment of the above qualities in their society. It would therefore not be development if the qualities are attained by external assistance or if the character of the attainment is foreign and completely or fundamentally at variance with the needs, values and aspirations of the particular developing society.
It is important to understand the human character of development as the human being is at the very root, center and end of the process. As has been beautifully espoused by the United Nations,
“The human person is the central subject of the development process development policy should therefore make the human being the main participant and beneficiary of development” .
Ake shares this view when he posits that the people must be the means and end of the development process. It is urgent and important to stress this point as the prevailing view in Nigeria would appear to be the enriching of government coffers and the continual enlargement of its content, with little or no reference or interest to the peoples direct involvement in the process or outcome.
SOME DEVELOPMENTAL PROBLEMS IN THE OIL AND GAS SECTOR
The present state of oil and gas development in Nigeria poses serious problems of developmental dimensions. Organized as the sector may appear, its effect rather than develop the sector retards it deeper and further into underdevelopment.
I shall examine only six of these effects to highlight the developmental implications of the status quo. These are
- Dual role of the Federal government
- Foreign participation in the sector
- Citizens and development of the sector
- Development of the oil and gas sector of the economy
- Environmental management and
- Industrial disharmony.
- Dual Role of the Federal Government:
It is the traditional function of government, especially in modern times to inter alia;
- Secure its territory against internal insurrection and especially external aggression;
- To protect life and property of citizens in particular and residents at large.
- To preserve the environment and ensure judicious management of natural resources and the economy to the over all advantage of the constituent peoples of its state;
- To develop the economy by regulating activities therein, to provide a level playing field for all participants, and enable citizens and others invest in its economy with a view to making profit, providing capital and social services and contributing to public development through taxation.
These responsibilities are effectively secured to the Nigerian government by the constitution of the Federal Republic of Nigeria.
It is pursuant to the last two of the above responsibilities that the department of petroleum inspectorate was established in the NNPC Act, to regulate and stipulate the terms and conditions of participation in the Nigerian oil and gas sector.
The establishment of the NNPC itself, made the government sole investor in the oil and gas sector, in such a way that all other participants are and can only be permitted to do so, as partners to the government through the corporation.
This makes the government the regulator and sole investor in the oil and gas sector. This portends serious clash and conflict of interests, with government torn between revenue for self preservation and effective regulation for environmental preservation giving the primacy of self preservation; it is hardly surprising that the former prevailed. This has manifested in the following result:
- Partisan regulation of the sector towards government monopoly,
- Ineffective enforcement of operational standards and safeguards as the regulator is a partner in the breach and has thus become a reluctant enforcer.
- Repression against complaining host citizens aimed at quietening them to ensure continued operation at all cost in pursuit of revenue for the government.
The above perhaps accounts for the fact that in all the years of operation without regard to safety standards, no participant has been penalized.
b. Foreign Participation
Oil and gas as valuable resources of economic significance were first identified by the colonial government, the development of whose home country had necessitated the prospecting drilling, exporting and refining of oil and gas as energy sources. They thus emerged at a time when Nigerian economy and society had not known, let alone understood their economic and developmental value. Sequel to the above, oil exploration understandably started with foreign companies. The Nigeria Bitumen company was the first company to drill wells around Lagos in 1908, albeit unsuccessfully, while Shell D’archy later known as Shell B.P became the first company to strike oil in commercial quantity in Oloibiri in the Niger Delta Area of Nigeria in 1956. Expectedly, the colonial government then in its end years, licensed Shell B.P, to drill oil and prospect for same in what is now half of the nation’s oil fields.
Since the said colonial penultimate days many more foreign companies have been licensed to prospect for and participate in the up and down stream sectors of the industry, as at 1985, it was observed that ten companies alone had been licensed to participate in the sector, all ten companies were foreign without exception.
There were ofcourse very good reasons for this state of affairs, first the complexity and sensitive nature of the industry demanded high technology and very specialized operators, these were on inception lacking as they largely still are today among local society and citizens.
Secondly, the sector as we have observed herein, is a capital intensive sector, the prospecting cost of which is already almost beyond the material government. Only the foreign companies could muster up the huge capital required for such a dollar heavy venture.
Thirdly, the dynamics of a globalising economy arising from the understanding and co-operation of the world’s leading nations/economies, also ensured that for many years till date, the secrets of exploration technology were securely guarded and producing nations, through the class relations of nations, are kept in ignorance of the means of production of such very important energy source.
The problem identifiable here, is the externalization of the development and exploitation of such a major sector of the economy. The approach which has retained the colonial traditions of exploitation of natural resources in colonies to service “home country” industry has left the Nigerian economy under foreign control. This is especially so in the present capitalist world economic outlook in which industrialized countries, acting through the market forces factor unilaterally determine the price of sale of oil and other primary products, while also fixing the cost at which refined products will be bought by the primary producer / consumer nations.
The externalization of control of the economy has many implications, which transcend economic and straddle socio-political and developmental realms. The security and political stability of many third world oil producing nations have largely depended on the extent to which they have obeyed external neo-colonial instructions from such imperialist countries acting through the multi and transnational companies, international economic regulatory and advisory bodies such as the Bretton woods institutions.
- Nigerian citizens and the development of the oil and gas sector:
A follow up to the above point, is the fact that Nigerians are by reason of the above facts, precluded from participating in the development of the oil and gas sector in Nigeria. The reason ofcourse is that they lack the technical “know how” and the capital with which to invest in the sector, at individual level. But even this has a price. Nigerians were not, and never will be involved effectively in the development of their economy in general and the sector in particular as they will never have the opportunity so to do. If development is developer dependent, that is, about what a developing person or subject can do to increase and or advance his capacity to live and enjoy a better life, it follows that a person does not develop if he is not part of the development process. Of necessity the Nigerian oil and gas industry can only be said to be undergoing development if its owner – Nigerians are involved in its exploitation and particularly if Nigerians, not just their government, can apply the proceeds of its exploitation towards enhancement of their standard of living.
The development consequence of the present scenario, is therefore that the oil and gas sector can never sufficiently and properly be developed from a domestic point of view. The Nigerian state will continue to be a renteer state, knowing nothing about the actual quantum of its rented property, and knowing nothing of the technology and intricacies of its exploitation. Considering our status as a consumptive cum non producing economy, even the rent soon goes back to the payer through purchase of finished products and we are left as we were, with nothing, not our natural resources not its proceed.
- Environmental Management:
The environment is our common heritage. It is not just our habitat, it is indeed “us” for without the environment there cannot be a people, as even the people themselves are an integral part of the environment. It is for this reason that the due management of the environment and its safeguard has been considered a collective responsibility of every person natural or corporate, individual group or states. Similarly, the need to preserve the environment has transcended municipal concern, to a global or universal quest. In line with the above, the United Nations declaration on the environment at the Stockholm convention, has sought to ensure the measured and reasoned exploitation and utilization of natural resources and the environment without prejudice to the right of unborn generations of mankind to meet, duely preserved, the same degree of environment. It can therefore be adequately described as, not a gift to squander, but a loan from our forebearers standing in credit to our future generations.
The present state of development in the Nigerian oil and gas sector, is not just ineffective, but highly promotional of environmental mismanagement and recklessness.
The power to monitor and manage the environment rests on the government, which doubles as a de-jure senior partner in the business of exploitation of the Nigerian environment, and a scrupulous promoter of aggressive and relentless exploitation and exploration of oil and gas, to generate revenue for funding of government.
As has been observed above, this makes government not only a reluctant protector of environment, but also the major partner in breach which therefore has greater need to conceal and suppress protests against environmental breach, while window-dressing the nation as one where the international standards of environmental management is largely observed. The effect of this, is the emergence of emboldened foreign operators who disregard host community concerns and safety as the Nigerian government has guaranteed them undistorted operation through its agencies of coercion. What development impact? Of course several and serious.
With the seat of government far removed from the host communities and environmental recipients of the spoil of oil and gas exploration, the government is preoccupied with the maximization of revenue and too removed, to be sensitive to its impacts, which include in destruction of flora and fauna and general gradual poisoning of the habitat.
Secondly, it has left the government turning blind eye to identified environmental malpractices by the operators, thus resulting in severe environmental dislocations and despoliation of the host communities, gradual destruction of its habitat and installmental decimation of its people who are fellow citizens of the Federal Republic of Nigeria.
- Industrial Unrest:
Scrupulous exploitation and exploration of oil and the despoliatory environmental effects, the insensitivity of the federal government to the environmental hazards and genuine complaints of its endangered host community people, coupled with the mobile policemen and other apparatuses of state coercion, has created serious unrest in the oil and gas sector.
Host communities feel alienated from their “God given” resources, and harassed by their own government. They are thus gradually losing their sense of belonging to the Nigerian state and losing confidence in the ability of its government to protect them and preserve their human / citizenship rights. This has led to an explosion of ethnic nationalism.
Similarly, relentless suppression of the people by government has led to relentless resistance to an apparent oppression. This has heightened insecurity in the operational areas of the sector, and led to several deaths of operation staff and host citizens, hijack of operation staff and frequent attacks on oil and gas installations. This would appear to be natural as repression breeds increased resistance and dissent anomy oppressed people the world over. This sense of anomy and neglect has been directly responsible for the crises in the oil and gas operation areas, in the country. It has thus created insecurity and industrial unrest in the sector.
TOWARDS A DEVELOPMENT POSITIVE POLICY FOR THE NIGERIAN OIL AND GAS INDUSTRY
The developmental problems highlighted in this paper are not exhaustive, yet they are serious, enormous and portend grave developmental consequences for the effective development of the oil and gas sector in Nigeria. There is an urgent need to revisit the policies regulating the sector and to rethink the practice of exclusion, expropriation and emasculation that prevail in the sector at present. To do this, bold steps of economic and revolutionary nature must be taken to bring desired radical but positive and development promotional change into the industry. Towards this change, I make the following contribution:
- To be effective as a regulator of the industry, government should prune down its activities in the sector, to regulation. It should leave exploitation to the business class and concentrate on regulation and administration of tax with which it can effectively discharge its duties as other civilized countries do. For this purpose the NNPC should be separated entirely from the petroleum inspectorate division, as it can not effectively discharge its duties both as a major participant and regulation enforcer in an industry as regulation demanding as the oil and gas industry.
- In the alternative, an independent safety regulator like the federal environmental protection agency should be charged with the regulation of safety and standards in the sector. To ensure effectiveness its membership for the purpose of oil and gas, should include stake holders like “operations host community representatives as well as well known/reputable agencies of civil society such as Environmental Non-governmental Organizations (NGOs).This is because inter governmental relations mired in bureaucratic timidity which is well established in third world nations like ours, will defeat the goal of monitoring, as it leaves the departments, fraternizing as separated institutions of state engaged in “cake sharing”.
It is in the character of administrative agencies to get drowned in bureaucratic redtapism to the detriment of their functional objective. This point is instructively stressed by Maclaren when he observed concerning this issue that:
“Regulatory agencies generally have displayed a number of disturbing tendencies. They may become enmeshed in the bureaucratic net created by the particular system of administration. An accord may be reached and maintained through agency officials moving to the industry side. They may fail to enforce their legislation perhaps on the basis of policy directives from their minister, but more likely, simply through inertia and fear of generating heat.” 50A
- There is need for government to begin to take steps towards divesting from active participation in the exploitation sector of the industry. Government participation is not just uneconomic and distractive; it creates a false sense of economic growth centered on the government coffers, and thus is promotional of underdevelopment. Divesting the government will break its unhealthy monopoly in the sector, and thus open the sector to the entrepreneurial creativity of the business class; this will in turn enhance the investors financially, create more jobs and uplift the living standard of the citizens. This is the true index of development?
- Divestment as suggested here above, will still come to naught, unless deliberate effort is made to de-allienate the sector, by opening it up to indigenous participants. The current monopolization of the sector by the government, has cast a shroud, a semblance of “hallo” over the sector, keeping it out of indigenous reach for now and for always. Enhancing citizens to participate by according them financial and or technical assistance will bring out the best in the Nigerian investor and oil and gas practitioners. It will be only a matter of time, and they will prove themselves equal to the task as their compatriots who have acquired foreign citizenship following the brain drain, are presently proving themselves around the world. It is in this regard that the ongoing privatization of the industry must take into consideration the peculiarity of the Nigerian condition and ensure that privatization must mean more than transferring control from government hands to the private sector. It must mean vesting the economic destiny of Nigeria in the hands of its people.
- The people of the host communities of oil and gas operations must be integrated into the process, if the sector is to experience any semblance of industrial peace. As I have argued previously, the greatest security of oil and gas operators will come not from the barrels of the federal guns, but through the co-operation and participation of the host communities. It is as pertinent as it is urgent, that such communities be availed shares or percentages of the proceed from exploitation of their natural resources. This will make them see themselves as stake holders which they are, and co investors who will necessarily protect the investments and materials as their own knowing that it’s proceeds is partly theirs and that it also serves their needs. This is particularly so, when they are as suggested in 2 above, equally involved in the safety regulation and can therefore ensure that operations of the industry takes into strict account, their health, safety and environment; as Omoweh agrees,
“… the people would also have the feeling that they are part and parcel of both the decision-making as well as the development process. And with this sense of belonging, the protection of the environment would be the collective responsibility of all, while incidences of protest would be minimized.”
It is obvious that the oil and gas sector is a high risk sector as well as a capital intensive one, it is also self evident from the above presentation, that the current approach of the Nigerian state towards development of the sector is riddled with serious defects that will leave the country in perpetual dependency on the external sector, as it is reduced to a rent collector who knows neither the quantum nor the output of the investment over which he is entitled to levy tax. It is also clear that the present regime of resource control leads the nation away from the paths of development, far into the depths of chronic underdevelopment, where it will perpetually remain endowed with natural resources but know and learn nothing of how to exploit it to serve its needs nor how to harness it to service its own industries.
Unfortunately, the state will predictably not benefit from researches and recommendations of the nature made here as it presently lacks the political will and industrial sincerity required, yet it is the lot of all patriots to individually and collectively think aloud and persuade or compel this nation to cast off its toga of colonial philosophy and policy of development, and rediscover its great potential and destiny that it may free and perfect itself and its citizens. The oil and gas sector is a veritable tool of such self liberation in view of its primal place in the all important global energy sector. Whether or not Nigeria succeeds in this bid will depend on its ability to make radical changes, and refocus its development apolicy on its citizens, as only indigenous driven development can be sustainable.
In doing so, we must realise as the world has come to do, that
“ The protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all government…. a point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance of indifference we can do massive and irreversible harm to the earthly environment on which our life and well-being depends.”
The Nigerian environment is already massively harmed especially in the production areas, the protection and preservation of what is left of it must therefore be a dominant part of our development positive oil and gas policy.
List of current obnoxious iegislations, showing the relevant sections that expropriate proprietory rights from natural owners, regions and individuals of the Nigerian Federation.
LAND USE ACT
An Act to vest all land comprised in the territory of each State (except land vested in the Federal Government or its agencies) solely in the Governor of the State, who would hold such land in trust for the people and would henceforth be responsible for allocation of land in all urban areas to individuals resident in the State and to organisations for residential, agricultural, commercial and other purposes while similar powers with respect to non-urban areas are conferred on Local Governments.
[1978 No. 6.] [29th March, 1978]
- Vesting of all land in the State
Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation is 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 in accordance with the provisions of this Act.
- Control and management of land; advisory bodies
(1) As from the commencement of this Act—
(a) all land in urban areas shall be under the control and management of the Governor of each State; and
(b) all other land shall, subject to this Act, be under the control and management of the local government within the area of jurisdiction of which the land is situated.
- Prohibition of and penalties for unauthorised use of land
(1) Save as permitted under section 34 of this Act, as from the commencement of this Act no person shall in an urban area—
(a) erect any building, wall, fence or other structure upon; or
(b) enclose, obstruct, cultivate or do any act on or in relation to,
any land which is not the subject of a right of occupancy or licence lawfully held by him or in respect of which he has not received the permission of the Governor to enter and erect improvements prior to the grant to him of a right of occupancy.
(2) Any person who contravenes any of the provisions of subsection (1) of this section shall on being required by the Governor so to do and within the period of time fixed by the Governor, remove any building, wall, fence, obstruction, structure or thing which he may have caused to be placed on the land and he shall put the land in the same condition as nearly as may be in which it was before such contravention.
(3) Any person who contravenes any of the provisions of subsection (1) of this section shall be guilty of an offence and liable on conviction to imprisonment for one year or to a fine of N5,000.
(4) Any person who fails or refuses to comply with a requirement made by the Governor under subsection (2) of this section shall be guilty of an offence and liable on conviction to a fine of N100 for each day during which he makes default in complying with the requirement of the Governor.
LANDS (TITLE VESTING, ETC.) ACT
An Act to provide among other things, for the vesting of the title of all land within the 100 metres limit of the 1967 shore line and all land reclaimed near the lagoon, sea or ocean in or bordering Nigeria exclusively in the Federal Government of Nigeria.
[1993 No. 52.]
[1st January, 1975]
- Vesting of ownership of lands in the Federal Government of Nigeria
(1) For the avoidance of any doubt and notwithstanding anything to the contrary contained in the Constitution of the Federal Republic of Nigeria or any enactment, law or vesting instrument, the title to all the lands within 100 metres limit of the 1967 shoreline of Nigeria and any other land reclaimed from any lagoon, sea or ocean in or bordering Nigeria or of oceans bordering the Federal Republic of Nigeria shall, to the exclusion of any right accruing to any body corporate or unincorporate or industry, vest in the Federal Government of Nigeria without any further assurance than this Act.
(2) Accordingly, any purported title to any land referred to in subsection (1) of this section held by any State or local government, any individual or by any body corporate or unincorporate before the commencement of this Act, is hereby vested in the Federal Government of Nigeria.
- Control and management of lands
All the lands referred to in section 1 of this Act shall be controlled and managed for and on behalf of the Federal Government of Nigeria by the Federal Ministry charged with responsibility for lands and land matters or any other authority designated by that Ministry for the purposes of this Act.
MINERALS AND MINING ACT
An Act to provide for the control of and property in minerals and to regulate mining in Nigeria.
[1999 No. 34.]
[10th May, 1999]
Minerals and mining
Ownership of minerals
- Control of and property in minerals, in water, etc., vested in the State
(1) The entire property in and control of all minerals, in, under or upon any land in Nigeria, its contiguous continental shelf and of all rivers, streams and watercourses throughout Nigeria, any area covered by territorial waters or constituency, the Exclusive Economic Zone is and shall be vested in the Government of the Federation for and on behalf of the people of Nigeria.
(2) All lands in which minerals have been found in commercial quantities shall, from the commencement of this Act, be acquired by the Government of the Federation in accordance with the provisions of the Land Use Act and the Minister may, from time to time, with the approval of the President, designate such lands as security lands.
- Royalties and deferment of royalty
(1) Any mineral obtained in the course of prospecting or mining operations shall be liable to such royalty as may be prescribed by the Minister and published in the Gazette.
(2) The Minister may reduce or waive royalty on any mineral which the Minister is satisfied is being exported solely for the purpose of analysis or experiment or as a scientific specimen, not being in greater quantity than in his opinion is necessary for that purpose.
(3) The Minister may defer payment of royalty on any mineral for a specific period as in his discretion becomes necessary, by publication in the Gazette.
- Minerals raised by holder of an exclusive prospecting licence to be property of Nigeria, etc.
(1) Any mineral raised or obtained in the course of prospecting under a prospecting right or an exclusive prospecting licence shall be the property of the Federal Republic of Nigeria held for and on behalf of the people of Nigeria.
(2) No person, whether or not the holder of a right or licence under this Act, shall remove from the land or dispose of any mineral obtained in the course of prospecting by the holder except with the consent of the Minister.
(3) If the holder of a prospecting right or an exclusive prospecting licence or his agent during the course of prospecting discovers any radioactive mineral or any mineral which may reasonably be expected to be radioactive, he shall forthwith notify the Minister of the discovery in writing.
NATIONAL INLAND WATERWAYS AUTHORITY ACT
Declaration of navigable waterways, etc.
- Declaration of navigable waterways
The rivers and their tributaries, distributaries, creeks, lakes, lagoons and intra-coastal waterways specified in the Second Schedule to this Act are hereby declared Federal navigable waterways.
- Area under control of the Authority
All navigable waterways, inland waterways, river-ports and internal waters of Nigeria, excluding all direct approaches to the ports listed in the Third Schedule to this Act and all other waters declared to be approaches to ports under or pursuant to the Nigerian Ports Authority Act, up to 250 metres beyond the upstream edge of the quay of such ports, shall be under the exclusive management, direction and control of the Authority.
[Third Schedule. Cap. N126.]
- Right to land use for navigable purposes including right of way
(1) Subject to the provisions of the Lands (Title Vesting, etc.) Act, the right of land usage for improvement of navigability and provision of infrastructure shall cover areas on both banks of the waterways which would be submerged in a flood of 100 years return period.
(2) In case of waterways with steep banks where such flood have no overbank flow, the right of way shall include the areas of land along the waterway measured 100 metres perpendicular from the edge of the channel.
- Right to land within right of way
(1) Notwithstanding the provisions of the Land Use Act or any other enactment, but subject to the provisions of the Lands (Title Vesting, etc.) Act, the Authority shall have right to all land within the right-of-way of declared waterways and shall use such land in the interest of navigation.
[Cap. L5. Cap. L7.]
FEDERAL NAVIGABLE WATERWAYS
- The River Niger from the Nigerian/Niger/Benin border, through the Nun and Forcados distributaries to the Atlantic Ocean.
- The River Benue from the Nigerian/Cameroun border to its confluence with River Niger at Lokoja.
- The Cross River from the Nigerian/Cameroun border to the
, and all its distributaries.
- Rivers Sokoto, Kaduna, Geriny, Gongola, Taraba, Donga, Katsina-Ala, Anambra, Ogun, Oluwa, Osse, Benin, Imo, Kwa Ibo.
- The Intra-coastal route from Badagry, along the Badagry Creek to Lagos, through Lagos Lagoon to Epe, Lekki Lagoon to Iwopin, along Omu Creek, Talifa River to Atijere, Akata, Aboto, Oluwa River to Okitipupa and onto Gbekebo, Arogbo, Ofunama, Benin Creek to Warri. Also the canal running from Araromi through Aiyetoro, Imelumo to Benin River and from Aiyetoro through Mahin Lagoon to Igbokoda.
- The waterway from Warri along the Forcados River, through Frukana, Siama, Bomadi, Angalabiri, Patani, Torofani, down River Nun to Agberi, Kiama, Sabagreia, Gbaran Creek, Agudama, Ekpetional into Ekole Creek to Yanaka, Yenegoa, Sangata to Mbiakpaba, onto Okokokiri, Ofokpota, Olagaga, Nembe, Adema, Agoribiri Creek to Egbema, Degema, Sombreiro River to Hanya Town, Ogbakiri to Port Harcourt.
- The waterway from Port Harcourt, through Amadi Creek down Bonny River, into Opobo Channel Adoni River, through Andoni Flats. Tellifer Creek, Imo River, Shooter Creek, Kwa Ibo Creek, Kwa Ibo River, Stubbs Creeks, Widenham Creek, Effiat-Mbo Creek, Cross River estuary to Oron and Calabar.
- Rivers Benin, Ethiope, Ossiomo, Onne, Aba, Azumini, Olomum, Siluko, Talifa, Forcados, Penington, Escravos, Warri, Ramos, Dodo, Bonny, Middleton, Fishtown, Sengana, Brass of Nicholas, Santa Barbara, San Batholomew, Sambriero, New Calabar, Mbo, Rio del Rey, Uruan, Akwayafe.
- Creeks Odiama, Agamama Tora, Nembe, Krakama, Buguma, Bille, Finima, New Calabar, Ekole, Cawthprne Channel, Ikane-Bakassi, Omu, Kwato (Gwato), Adagbrassa, Chananomi, Okpoko, Jones Kulama, Ikebiri, Nikorogba, Sagbama, Egbedi, Kolo, Laylor, Hughes Channel.
- Lakes Mahin, Oguta, Osiam Ehoma.
- The Orashi River from Oguta Lake to Ebocha, Omoku, Kreigani, Moiama, Okariki, Egbema, Sombreiro River.
- Lake Chad, that part within Nigeria.
OIL PIPELINES ACT
An Act to make provision for licences to be granted for the establishment and maintenance of pipelines incidental and supplementary to oilfields and oil mining, and for purposes ancillary to such pipelines.
[1956 No. 31. 1965 No. 24.]
[4th October, 1956]
- Short title and extent
This Act may be cited as the Oil Pipelines Act and shall apply throughout the Federation.
In this Act, unless the context otherwise requires—
“licence” means an oil pipeline licence granted under the provisions of this Act;
“Minister” means the Minister charged with responsibility for matters relating to oilfields and oil mining;
“oil pipeline” has the meaning given to it in section 11 (2) of this Act.
- Power to grant permit to survey and oil pipeline licence
The Minister may, subject to the provisions of this Act grant—
(a) permits to survey routes for oil pipelines; and
(b) licences to construct, maintain and operate oil pipelines:
Provided that each licence shall be issued in respect of and authorise the construction, maintenance and operation of one pipeline only.
Permit to survey
- Permit to survey
(1) Any person may make an application to the Minister in accordance with the provisions of this Act and of any regulations made thereunder for the grant of a permit to survey the route for an oil pipeline for the transport of mineral oil, natural gas, or any product of such oil or such gas to any point of destination to which such person requires such oil, gas or product to be transported for any purpose connected with petroleum trade or operations.
(2) Every application for a permit to survey shall specify the approximate route or alternative routes proposed.
(3) The Minister may—
(a) grant the permit to survey on payment of the fees required by section 31 of this Act to be paid by the applicant on the submission of the application and on grant of the permit to survey respectively; or
(b) for reasons which to him appear sufficient, refuse to grant the permit to survey.
(4) If the Minister refuses to grant the permit to survey he shall notify the applicant in writing of such refusal and the reasons therefor.
- Effect of permit to survey
(1) A permit to survey shall entitle the holder, subject to the provisions of section 6 of this Act, to enter together with his officers, agents, workmen or other servants and with any necessary equipment or vehicles, on any land upon the route specified in the permit or reasonably close to such route for the following purposes—
(a) to survey and take levels of the land;
(b) to dig and bore into the soil and subsoil;
(c) to cut and remove such trees and other vegetation as may impede the purposes specified in this subsection; and
(d) to do all other acts necessary to ascertain the suitability of the land for the establishment of an oil pipeline or ancillary installations,
and shall entitle the holder, with such persons, equipment or vehicles as aforesaid, to pass over land adjacent to such route to the extent that such may be necessary or convenient for the purpose of obtaining access to land upon the route specified.
(2) The Minister may, upon application by the holder of a permit to survey, vary the route specified in such permit, but such variation shall not invalidate or make illegal any act done by the holder pursuant to the permit prior to such variation, nor prejudice the rights of any person under this Act with reference to any act done by the holder pursuant to the permit prior to such variation.
Oil pipeline licence
- Oil pipeline licence
(1) The holder of a permit to survey may make an application to the Minister in accordance with the provisions of this Act and of any regulations made thereunder for the grant of an oil pipeline licence in respect of any oil pipeline the survey of the route for which has been completed by the applicant.
(2) The Minister may—
(a) grant the licence on payment of the fees required by section 31 of this Act to be paid by the applicant on the submission of the application and on the grant of the licence respectively; or
(b) for reasons which the Minister considers sufficient, refuse to grant the licence.
(3) If the Minister refuses to grant the licence, he shall notify the applicant in writing of such refusal and the reasons therefor.
(4) No person other than the holder of a licence shall construct, maintain or operate an oil pipeline.
(5) Every person who acts in contravention of subsection (4) shall be guilty of an offence and shall be liable on conviction to a term of imprisonment not exceeding two years or to a fine not exceeding N1,000 or to both such imprisonment and such fine.
An Act to provide for the exploration of petroleum from the territorial waters and the continental shelf of Nigeria and to vest the ownership of, and all on-shore and off-shore revenue from petroleum resources derivable therefrom in the Federal Government and for all other matters incidental thereto.
[27th November, 1969]
- Vesting of petroleum in the State
(1) The entire ownership and control of all petroleum in, under or upon any lands to which this section applies shall be vested in the State.
(2) This section applies to all land (including land covered by water) which—
(a) is in Nigeria; or
(b) is under the territorial waters of Nigeria; or
(c) forms part of the continental shelfs; or
[1998 No. 22.]
(d) forms part of the Exclusive Economic Zone of Nigeria.
(3) In this section references to “territorial waters” are references to the expression as defined in the Territorial Waters Act.
- Oil exploration licences, oil prospecting licences and oil mining leases
(1) Subject to this Act, the Minister may grant—
(a) a licence, to be known as an oil exploration licence, to explore for petroleum;
(b) a licence, to be known as an oil prospecting licence, to prospect for petroleum; and
(c) a lease, to be known as an oil mining lease, to search for, win, work, carry away and dispose of petroleum.
(2) A licence or lease under this section may be granted only to a company incorporated in Nigeria under the Companies and Allied Matters Act or any corresponding law.
(3) The provisions of the First Schedule to this Act shall, in so far as they are applicable, have effect in relation to licences and leases granted under this section.
(1) No refinery shall be constructed or operated in Nigeria without a licence granted by the Minister.
Source: Laws of the Federation of Nigeria, 2004. Published by the Federal Ministry of Justice, Abuja, Nigeria.
TABLE 1: NIGERIA PRODUCTION OF MINERAL COMMODITIES
It is safe to estimate gross under-capacity mining for each mineral in Table 2. According to the US Geological Survey Minerals Year Book 20005, part of Nigeria production of mineral commodities from 1996 to 1999 (detailed report at URL given below) is indicated as follows:
|Mineral||1996 (metric/tons)||1997 (metric/tons)||1998 (metric/tons)||1999 (metric/tons)|
|Gold1 (est. kilograms)||6||6||10||--|
|Iron and Steel||--||--||--||--|
|Topaz (est. kilograms)||1,500||--||1,700||1,700|
|Limestone (thsd. tons)||2,095||2,000||2,000||2,000|
|Iron Ore (thsd. tons)||100||50||--|
Source: US Geological Survey Mineral Year Book 20005
Table 2: Nigeria Solid Mineral Resources Deposits by States
|Abia||Glass sand, limestone, salt, shale, ball clay, galena, granite, marble, laterite, bentonite, phosphate, kaolin, pyrite, feldspar, petroleum, lignite, gypsum, sphalerite, clay|
|Adamawa||Granite, clay, gypsum, limestone, uranium, kaolin, coal, trona, barite, salt, marble, magnesite, laterite|
|Akwa Ibom||Clay, glass sand, salt, silica sand, granite, coal, petroleum, natural gas, kaolin, limestone, lignite|
|Anambra||Clay, iron stone, natural gas, petroleum, sand stone, kaolin, pyrite, lignite|
|Bauchi||Kaolin, trona, gypsum, cassiterite, mica, clay, tantalite, galena, iron ore, gemstone, sphalerites, silica sand, barite, columbite, zinc, lead, muscovite, quartz, columbite, tin, glass sand, salt, monazite, feldspar, graphite, wolfram, coal, agate, tantalum, rutile, tungsten, copper, talc, ilmenite, zircon|
|Bayelsa||Salt, petroleum, natural gas, silica sand|
|Benue||Bentonite, crude salt, petroleum, limestone, glass sand
Gemstone, barites, feldspar, marble, mica, silica sand, quartz, galena, lead, zinc ore, silica sand, clay, coal, gypsum, kaolin, anhydrite, calcium, sulphate, brick clay, crushed and dimension stone, fluorspar, wolframite, bauxite, shale, magnetite, ilmenite, brenite
|Borno||Silica sand, natural salt, sapphire, topaz, mica, quartz, gypsum, uranium, iron ore, magnesite, feldspar, granite, aquamarine, nepheline, limestone, kaolin, bentonite, laterite clay, refractory clay, trona, gold, tin, potash|
|Cross River||Salt, limestone, coal, manganese, mica, ilmenite, gold, quartz, glass sand, tourmaline, petroleum, natural gas, kaolin, tin ore, mica, sharp sand, clay, spring water, salt deposits, talc, granite, galena, lead zinc, tin ore, goethite,
Muscovite, uranium, barites
|Delta||Kaolin, lateritic clay, gravel, silica sand, natural gas, petroleum, ball clay, bauxite, granite, river sand, clay, spring water|
|Ebonyi||Lead/Zinc ore, salt, limestone, ball clay, refractory clay, gypsum, granite|
|Edo||Charnockite, copper, gold, marble, granite, gypsum, petroleum, diorite, lignite, limestone, ceramic clay|
|Ekiti||Clay, charnockite, quartzite, lignite, limestone, granite, gemstone, bauxite, cassiterite, columbite, tantalite, feldspar, kaolin|
|Imo||Crude oil, shale, natural gas, kaolin, laterite sand, limestone, salt, marble,|
|Jigawa||Glass sand, granite, laterite clay, silica, kaolin, iron ore, quartz, potash, talc, limestone|
|Kaduna||Muscovite, granite, gold, manganese, clay, graphite, sand, zircon, kyanite, tin ore, ilmenite, gemstone, columbite|
|Kano||Clay, laterite, cassiterite, columbite, ilmenite, galena, phyrochlorite, kaolin, gemstone, silica, tin ore, monazite, wolframite, thorium, granite, hyalite, kaolin, beryl, amethyst, gold|
|Katsina||Gold, Manganese, lateritic clay, feldspar, black tourmaline, amethyst, quartz, kaolin, mica, gypsum, silimanite, clay, granite sand, uranium, asbestos, tourmaline, serpentine (chresolite asbestos), chromites, ilmenite, diamond, graphite, iron ore, potash, silica sand|
|Kebbi||Salt, iron ore, gold, feldspar, limestone, quartz, bauxitic clay, manganese, kaolin, mica|
|Kogi||Clay, iron ore, gemstone, marble, limestone, feldspar, dolomite, phosphate, mica, cassiterite, granite, ornamental stone, coal, kaolin|
|Kwara||Clay, kaolin, silica sand, quartz, dolomite, marble, feldspar, gold, tantalite, cassiterite, granite, limestone|
|Lagos||Silica sand, bitumen, sharp sand, gravel, petroleum, laterite|
|Nassarawa||Cassiterite, gemstone, amethyst, beryl, chrysolite, emerald, garnet, sapphire, topaz, barites, galena, monazite, zircon, glass sand, coal|
|Niger||Ball clay, kaolin, limestone, granite, glass sand, iron ore, red clay, feldspar, gold, graphite, cyanite, silica sand, quartz, asbestos, marble, talc, gemstone|
|Ogun||Kaolin, feldspar, silica sand, mica, granite, clay, phosphate, gypsum, limestone, quartz, tar sand|
|Ondo||Marble, gold, gemstone, clay, diorite, lignite|
|Osun||Clay, granite, talc, dolomite, ilmenite, feldspar, quartz, limestone, mica, clay|
|Oyo||Clay, feldspar, granite, ilmenite, iron ore, kaolin, quartz, talc, marble, dolomite, tourmaline, aquamarine, amethyst|
|Plateau||Monazite, columbite, feldspar, clay, cassiterite, gemstone, kaolin, dolomite, mica, zircon, marble, ilmenite, barites, quartz, talc, galena|
|Rivers||Petroleum, natural gas, silica sand, glass sand, clay|
|Sokoto||Silica sand, clay, salt, limestone, phosphate, gypsum, kaolin, laterite, potash, granite|
|Enugu||Lateritic clay, crude oil, kaolinitic clay, ball clay, iron-ore, glass sand, petroleum, gypsum, coal, silica sand, ceramic clay|
|FCT – Abuja||Kaolin, limestone, granite, marble, feldspar, mica, dolomite, clay, sand, talc|
|Gombe||Graphite, kaolin, limestone, silica sand, uranium, coal, halites, clay, gypsum, diatomite, granite|
|Fluorspar, garnet, tourmaline, sapphire, zircon, tantalite, columbite, cassiterite, barite, galena, gypsum, limestone, laterite, calcite, bauxite, magnetite, pyrite, lead/zinc ore|
|Yobe||Salt, trona, diatomite, clay, gypsum, kaolin, silica sand, limestone, epsomite, iron ore, trona, shale, uranium, granite, bentonitic clay|
|Zamfara||Gold, Alluvial gold, granite, chromites, charnockite, clay, feldspar, spring water|
Source: Raw Materials Research and Development Council (RMRDC), Abuja, Nigeria
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International Legal Materials. 318.
Lee, s: HANDS OFF: Why Government is a Menace to Economic Health. 1996, Simon and cluster.
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Marx, K.: A contribution to the critique of political economy in feuer, L.S. (Ed) Marx & Engels Basic writings1969, Fontana.
Nkrumah, K: Neo Colonialism: the last stage of Imperialism. 1965 Thomas Nelson & Sons.
Northern Ireland Law Quarterly vol. 27. No.1 Spring 1976.
Nwabueze B. O.: “Federalism under the Presidential Constitution”. 1985.
Nwauche E. S: Ownership and Control of Mineral Resources: Minorities and Human rights in Federations. 1998, Jite Books.
Ofeimun, O: Renewed Nationalist Agitations and the politics of subverted federalism in Nigeria” in boiling point2000 CDHR, Lagos.
Okagbue, A. The Law and Development of Natural Gas in Nigeria. 1985 NIALS, Lagos.
Omoweh, D. A: “Nigeria: “Oil Exploration and Production Theoretical overview” in Boiling point 2000 CDHR.
Oyerinde, A: “Oil disempowerment And Resistance in the Niger Delta” in CDHR: Ken Saro-Wiwa and the Crises of the Nigeria State. 1998.
Rodney, W: How Europe underdeveloped Africa; 1972 George Allen Unwin.
Rourke J. T. and Boyer M. A. World politics (2nd ed) 1998, Mcgraw – Hill.
Sagay I.E: “The extractive industries in the Niger Delta and the limits of
International law” Anpez Annual lectures 2001.
Stuart Kirsch: “Acting Globally: Eco-politics in Papua New Guinea”, The Journal of the International Institute, Vol. 3 Number 3 Spring/Summer 1996.
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The Guardian: Thursday April 26 2001.
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World Bank: World Development Report 1991, Oxford.
World Bank: World Development Report 1992. Oxford.
Yinka Omorogbe: “Communities and the Natural Resources Industries” The Route to Survival”. Text of a paper presented at the World Women Lawyers Conference organized by the International Bar Association, at London, 1st – 2nd March 2001.
 Blacks Law Dictionary, 6th edition
 Chambers 20th Century Dictionary, new edition Ed. Macdonald, Pitmans Press 1981.
 Blacks Law Dictionary. Op cit.
 Nwabueze, B. O.:
 See s.4 (5) of the 1999 Constitution of Nigeria.
 Much work has been done on this area. See for instance, Mbanefo and Egwaike: “Revenue Allocation In Nigeria;Derivation Principle Revisited” and Adesina, O. C.: “Revenue Allocation Commission and the Contradictions in Nigeria’s Federalism”. In Amuwo , Agbaje, etal Federalism Political Restructuring In Nigeria. 1998, Spectrum PP. 213 - 246.
 Wokocha, R. A.: “Disturbing Trends In Nigerian Business Jurisprudence” A Paper presented at a seminar held by Schalesworths Centre in Port Harcourt on 13/11/2001. P 9-10
 This was the position prior to colonial government and during colonialism especially during the regional experiment before Independence.
 Sections 140(6) 153 and 158, 1960 and 1963 Nigerian Constitution respective.
 General Gowon announced the centralization of resource control to raise money with which to levy the war against Biafra. He announced it to be a temporary measure, which will be dropped after the war.
 Item 36 of the Exclusive Legislative List in PT.1 of Schedule 2 to the Constitution of the Federal Republic of Nigeria 1979.
 Federal Government claimed total control to enable it engender judicious management of the resources and ensure even development of the Nigerian nation.
 Odebala, E. O.: “Resource Control The Issues Involved” in The Guardian 31/01/01.
 Ikpatt, C and Ibanga N. J.: NIGERIA'S MINERAL RESOURCES: A CASE FOR RESOURCE CONTROL
 Alogoa E. J.: “The Eastern Niger Delta and The Hinterland In The 19th Century”. In Ground Work of Nigerian History Ikime O, (Ed) 1980. Heinmann. P. 250
 Onwubiko K. B. C.: History of West Africa (Book Two) 1973, Africana Publishers. PP. 234 – 239. See also Niven, C. R.: A Short History of Nigeria. (9th Edition) 1965, Longmans. PP.162-163 and Crowther, A.: West Africa Under Colonial Rule. 1968 Hutchinson, PP119-123
 Onwubiko K. B. C. Op. Cit. P. 236.
 S.3 (1) Minerals Ordinance of 25th February 1946.
 Omoruyi, O: “The Politics of Oil: Who Owns Oil in Nigeria? States or Communities” The Guardian. 24-01-2001. P. 8.
 N. Azikiwe: “Renascent Africa” (New York, Negro Universities Press, 1969), P. 7.
 Adedeji, A: “Mastering Nigeria’s Conflict”, The Guardian 19/4/2001, P.5. See also Esajere, A: “Nigeria’s Tortuous Path to Genuine Derivation”, The Guardian 8/1/01, PP 8-9
 Balarabe Musa, in Q Interview in Quality Magazine October 27, 1988, P.39.
 Both Azikiwe and Ahmadu Bello backed this call as Cocoa, Groundnut and Palm Oil were the mainstay of the economy, and were found in the three regions respectively.
 Udoma: “The History and Law of the Constitution in Nigeria” Spectrum 1999 P.206-7.
 Dr. Ibiwari Ikiriko’s apposite description of Ken-Saro-Wiwa who was hanged with 8 of his Kinsmen on 10 November 1995 for the cause, in his most recent but last work, “Oily Tears of the Niger Delta” 2001. Dr. Ikiriko was another intellectual kingpin of the struggle who passed away without realizing his will to secure justice for the Niger Delta through literary (poetic) activism.
 Where a clash between youths and government police left seven policemen dead and the federal Government ordered the complete destruction of the entire Odi Community with all citizens inhabiting it in reprisal.
 Resource control has been a major item on the agenda of the periodic meeting of the Southern Governors of Nigeria. See for example, Tell magazine of April 9 2001, p.24-37.
 See Ayodele-Akaakar, F. O: “Appraising the Oil and Gas Laws: A Search for Enduring Legislation for the Niger Delta”, The Journal of Sustainable Development, Louisiana, Vol. 3. No. 2, 2002.
 Ayodele-akaakar, F. O., Ibid. see also, The 1992 World Development and Environment Report.
 Yinka Omorogbe: “Communities and the Natural Resources Industries” The Route to Survival”, being the text of a paper presented at the World Women Lawyers Conference organized by the International Bar Association, London 1st – 2nd March 2001. for a detailed account, see: Stuart Kirsch: “Acting Globally: Eco-politics in Papua New Guinea”, The Journal of the International Institute, Vol. 3 Number 3 Spring/Summer 1996.
 Nwauche E. S: “Ownership and Control of Mineral Resources: Minorities and Human rights in Federations.” 1998 Jite Books, P.33.
 Item 37 on Part 1 of the Second Schedule to the 1999 Constitution. See also Nwabueze B. O.: “Federalism under the Presidential Constitution”. 1985, P. 39.
 See. S. 40 (1) of the 1979 Nigeria Constitution.
 Decree No. 51 of 1969 now CAP 350 in Laws of the Federation of Nigeria (LFN) 1990 as amended by Decree No. 23 of 1996 and Decree No.22 of 1998. See also Ayodele-Akaakar, F. O.: “Oil and Gas – The Issue of Ownership and the Nigerian Situation” FJRSB. Vol. 2 1997.
 See S. I. (1) and (2) Exclusive Economic Zone Act Cap 116 LFN 1990.
 Cap 428 LFN 1990. See also S.18 of the Interpretations Act. Cap 192 LFN 1990 as amended by Decree No. 1 of 1993.
 Decree No. 13 of 1997. See also F. O. Akaakar, “Legal and Institutional Framework”, Vol. 39, Phase II, Niger Delta Environment Survey (NDES) Final Report.
 Cap 287 LFN 1990.
 Op cit. note No. 29.
 Decree No.9 of 1971.
 See S. I. (1) of the Decree
 Fekumoh J. F: Commercial Interests in Land: Past Present and Future, in Proceedings of 26th Annual Conference of Law Teachers p.86 at p.97.
 S.28 and the entire Part V of the Land Use Act of 1978. see also Ebeku, K. S. A. Oil and The law and politics in Africa Asia and Latin America 35
 Decree No. 34 of 1999
 S. I. (1) of the Decree.
 Ibid Sub-section. (2)
 (2002) 10 SCNQLR 163.
 See Attorney General of the Federation v. Attorney General of Abia State & 35 Ors. (2001) 11NWLR689.
This conclusion effectively extended to the Federal Government, resources that should really belong to the states in a a true Federation.
 See for example AG Bendel State v AG Federation and Others. (1982) 3 NCLR 1.
 AG Abia State and others v AG Federation (2002), unreported decision of the Supreme Court of Nigeria.
 See for example, Governor Mallah Kachallah in THE TELL July 2,2001, p. 34.
 See for Instance the Position in the United States of America, Australia and Botswana.
 See for a detailed critique, Amuwo, Agbaje, etal: Federalism and Political Restructuring in Nigeria 1998 Spectrum PP. 213-275.
 Ake, c. op. cit. No. 45. See also F. O. Akaakar, (NDES)Op cit.
 Ibid. See also Collier P: “How To Reduce Corruption” in LBS Mgt. Rev. (1999)2 135-147 p.137-140. On the Corruption Impacts of Centralization.
 Adeosun A. O: “Regulation of Business Activities in Nigeria” in Law Development and Administration in Nigeria 1990. FMJ.P403.
 Sagay I: “The Extractive Industries in The Niger Delta and The Limits of International Law” A Paper delivered at Anpez Annual Lectures 2001 held in Port Harcourt. p.1.
 Okagbue, I. E: The Law and Development of Natural Gas in Nigeria, 1985 NIALS, Lagos.
 Ibid. p.4.
 Ibid. See also Sagay L: Op. cit. No. 72
 Sagay, I: Ibid.
 Ake C: Op cit. p.18-19.
 Professors A. Jinadu, W. Soyinka, C. Ake, A Adedeji, and Doctor P. Emeagwali are a few of the examples.
 See Chokor, B. A: “Appraising the Structural aspect of the Crisis of Community Development and Environmental Degradation in the Niger Delta” in Osuntokun (Ed.); Environmental Problems of the Niger Delta Friedrick Ebert Foundation. 2000.
 Wokocha, R. A.: “Development Rights Concerns in the Niger Delta Region of Nigeria” in Development Right Issues in the Niger Delta 2002 Jite Books P. 23. See also, Sagay, I: Op. cit No. 66 pp. 7-16 for further and detailed discussion.
 Ibid p.48.
 See also Articles 27 and 28 of the Equatorial Guinean Constitution.
 S.257 (6) of the 1992 Ghana constitution.
 Article 16(2).
 Article 100.
 S.8(1) (a) and (b) Constitution of Botswana.
 See Nwauche E. S. Op. cit p.48.
 Ibid. see also, Lang and Crommellin: Australian Mining and petroleum Laws, (1979).
 This is with exception to the capital territory where the 1st January 1911 Law Subsists and remains in force.
 75 ER 472. See also Woolley v AG. Of Victoria (1877) 2 App Cas 163 at 167-8.
 See the Australian Sea and Submerged Lands Act of 1948.
 See Nwauche E. S. Op cit.
 Leshly, J. D: “Indigenous Peoples, Land Claims and Control of Mineral Development. Australian and US Legal Systems Compared”, Vol. 8/9 University of New South Wales Law Journal. 287.
 See US v State of Louisiana 420 US 529 (1975) also. US v State of Maine 420 US 515.
 See AG Canada v AG British Colombia 8 DLR (4th) p.161.
 See Northern Ireland Law Quarterly vol. 27. No.1 Spring 1976.
 This contrasts sharply with the situation in the 1st Republic of Nigeria when regions owned and controlled resources in their continental shelf.
 See Kumins. L. “Outer continental shelf: Oil and Gas leasing and Revenue”. @_http:11cnie.org/NLE/CRS reports/energy/eng-45.com.
 Ibid at p.7.
 Article 19
 Article 20
 Article 21
 Article 22
 Article 23
 Article 24
 Dinstein: “Collective Human Rights of Peoples and Minorities” 25 International Comparative Law Quarterly102, 104 1976. Cited in Nwauche Op cit. p. 83.
 Kiwanuka, R: “The Meaning of People in The African Charter on Human and People’s rights”. 82 American Journal of International Law 80,81 (1988).
 Klabbers, J. and Lefeber R: “Africa lost between self determination and the struggle for Ethno Cultural authonomy in Nigeria: The Zangon Kataf and Ogoni Problems, ASCIL Proc. 6 (1996) 88.
 This of course conforms with the international law view that leans towards self determination.
 A view stressed strongly in Nwauche Op cit. p60.
 Declared by the UN to be an inalienable Right in 1986.
 See note No. 104 infra
 (2002)6 NWLR p.228.
 Ibid p.289 and 343.
 Of 1966 which came into force on 23/3/76.
 Of 1966 which came into force on 3/1/76.
 Resolution No. 1803 of 4/1/62 See especially Declaration No.7.
 Adopted as Resolution No. 47/135 on 18/12/92.
 of 1989. See Articles 3 and 5. Adopted as Resolution No. 169 and came into force in 3/9/91. See especially part 1 Article 2 (2) (6) and 7 (1) and 93).
 Halsbury’s Laws of England. Vol. 51 Para. 3.05, p. 378-9, (4th Ed.)
 Schlorsch Meirer GMBH v Henn in (1975) 1 A11 E R 152.
 Ibid at p.157.
 Especially since the period after the first republic which ended in 1966.
 Ake, C: The Marginalisation of Africa 1996 Malthouse Press. Ibadan.
 Ibid P. 15-16
 The various regions were able at this time, to prioritise their needs and pursue them.
 Nwauche, E. S. Op cit. No. 21, p. 96. See also Sagay I. E. in The Guardian: Thursday April 26 2001, p.8.
 Concepts which have been declared inalienable human rights by the United Nations, in 1962 and 1986 respectively. See also Article 25 UDHR 1948.
 See Article 24 African Charter On Human and people’s Right (ACHPR) on 1981. Now Act in Cap 10 of LFN 1990.
 Provided that the rights of states to participate and benefit from the sharing of the revenue therefrom is guaranteed, where such source falls within their territory.
 De Tocqueville, A: Democracy In America (1835) 1998. Wordsworth Classics.
 Ibid. P. 273.
 Boraine, A.: Cited in Idasa Reflections on Democracy 1997, Idasa. P. 16.
 See Ikein A. A. the impact of Oil on a Developing country the case of Nigeria 1990, Evans Brothers. Pp. 1 –4, see also, the minerals oil Act 1914 now cap 130 laws of Nigeria 1990.
 The minerals oil ordinance 1917 and 1946 cap 226 LFN 1990
 No. 51 of 1965 now cap 350 LFN 1990
 See S. I (2) (a) – (c) of the land use Act cap 202 LFN 1990
 See S. 1 (1) and (2) exclusive economic Zone act cap 116 LFN 1990.
 This forms the bulk of current literature on resource control in Nigeria see for instance sagay I.E: “The extractive industries in the Niger Delta and the limits of International law” Anpez Annual lectures 2001 P.
 See for example the FEPA Act cap 131 LFN 1990 and the harmful waste (special criminal provisions) etc Act. Cap 165 LFN 1990.
 This is especially so in the United States of America and Europe where Environmental consciousness is high.
8a. U..N. Convention on Preservation of Biological Diversity 1992, 31 International Legal Materials. 318.
 See for example the United Nations Stockholm Declarations on the Environment and Development of 1972. See also the Trail Smelter Arbitration case 3 MAA 1905 where Environmental concern was first expressed at International levels.
 See Rourke J. T. and Boyer M. A. World politics (2nd ed) 1998, Mcgraw – Hill , chapter 13.
10A. Wokocha R. A. “Natural Gas Energy In The Niger Delta: The Legal Requirements for Indigenous/State Joint Venture” in NSChE Newsletter Issue No. 02/2001, July 2001 p.14
 Sagay I. E. Op cit note 6 P.1
 Nigeria National Petroleum Corporation Act cap 320 LFN 1990 S.1
 Ibid s.3
 Ibid see the long title of the Act
 Ibid s.5
 Ibid s. 6
 Ibid s. 10 (1)
 Examples here include the various Refining Companies at Port Harcourt, Kaduna and Warri respectively, Nigerian Petroleum Development Company Limited, the Nigerian Gas Company Limited, and integrated Data System Nigeria Limited.
 See Okagbue, A. The Law and Development of Natural Gas in Nigeria. 1985 NIALS, Lagos P.4 also Ikein A. Op cit. p. 8 - 11
 It is important to note that while some of these companies have already fizzled out, even while at their best, their existence did not make any significant difference, as what they controlled was insignificant. See also Sagay, I.E. op cit P.1
 See, the United Nations Declaration on the Right to Development 1986 Art 1 (1)
 Ake, C: “An African context of Human Right”. Africa Today, vol 34 No. 1&2 1987, P. 8.
 Rodney, W: How Europe underdeveloped Africa; 1972 George Allen Unwin, p.9.
 World Bank: World Development Report 1991, Oxford P.4
 Article 2(i) of the Declaration on the Right to Development 1986.
 Ake, C. The Marginalization of Africa. 1986 Malthouse press P.42
 See for further details, Lee, s: HANDS OFF: Why Government is a Menace to Economic Health. 1996, Simon and cluster, P. 53.
 See s. 44 (3) of the 1999 Nigerian constitution.
 Following the establishment of NNPC in 1977 the government acquired majority shares in all major producing companies presently fixed at 60% except shell, which is 80%.
 A German company, which initially set, out to explore for Bitumen and was stopped by the World War II
 It was later nationalized into its present status as shell NNPC Nigeria Limited with owing 80% shares.
 See Ikein, A. A. Op. cit 22 - 25
 Ibid p. 1-4, see also Okagbue op. cit. p.4
 The scramble for Africa at the Birlin conference of 1884 – 5 set the stage, while the Group of Industrialized nations, the Breton wood institutions such as the world bank and IMF have sustained the trend.
 For details see Ake, C: Revolutionary Pressures in Africa 1978 Zed press, London Chapter 1
 See Nkrumah, K: Neo Colonialism: the last stage of Imperialism. 1965 Thomas Nelson & Sons, pp.1 - 2
 We have discussed these in Wokocha et al: “The legal and Regulatory challenges of Resources control in Nigeria” being a paper presented at the 38th law Teaches conference held in Lagos in 2002. pp. 9 – 11.
 See Ake, C: The marginalization of Africa op cit. p. 18 - 19
 Ibid p. 42
 This will enable all such stake holders take positive and proactive steps towards protecting the environment from abuse.
 By possessing 60% of the shares of participating companies
 See sagay, I. E: op cit Note 6, p. 17 - 18
 This has become the unofficial policy of the Government’s image launderers, especially since these protests began in about 1992.
 A glaring example is the case of citing of gas plants in Obagi and Obrikom Communities of Rivers State without base line studies, protested by the host communities in 1999. See Newswatch of 16th April 1999, p. 23
 See chokor, B.A: Appraising the structural. Aspect of the crisis of community development and environmental degradation in the Niger Delta in Oshuntokor (ED) Environmental problems of the Niger Delta, Friedrich Ebert foundations, 2000 p. 72 - 73
 See for detailed study, Ofeimun, O: renewed Nationalist Agitations and the politics of subverted federalism in Nigeria” in boiling point 2000 CDHR, Lagos, p. 66 – 77.
 This trend has been frequent since 1996 especially after the Ogoni killings
 Chokor, B. A: op cit. Also see generally, Oyerinde, A: “Oil disempowerment And Resistance in the Niger Delta” in CDHR: Ken Saro-Wiwa and the Crises of the Nigeria State. 1998, p.55-70.
 This is commonplace among progressive economies like U.S.A UK and Canada.
 Such organizations as Green Peace, save the Earth, Friends of the Earth, are already similarly actively involved in Environmental Monitoring in advanced countries such as the U.S.A, Canada, Italy and the U.K. They are usually neutral and effective.
50A. Maclaren, J. P. S op cit P. p. 507 (1972)
 See Marx, K.: A contribution to the critique of political economy in feuer, L.S. (Ed) Marx & Engels Basic writings 1969, Fontana, 84. also Omoweh, D: infra note 55.
 Ahiauzu, A. I. Has stressed this point of industriousness in private sector among Africans generally in his book The African Industrial man 1999 CIMRAT, P. II.
 This general view of privatization presently predominates Government thinking in Nigeria.
 Wokocha R. A. “Development Right concerns in the Niger Delta” in Wokocha R. A. (Ed) Development Right issues in the Niger Delta 2002 Jite Books, p. 34.
 Ibid. See also Omoweh, D. A: “Nigeria: “Oil Exploration and Production Theoretical overview” in Boiling point 2000 CDHR, P. 41.
 Declaration of the UN Congress on the Human Environment at 2 UN DOC. A/CONE 48/14 et. Seq. 1972.
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