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A Legislative Proposal for Public Participation in Oil and Gas Decision-Making in Nigeria

Published online by Cambridge University Press:  20 September 2010

Chilenye Nwapi
Rights & Permissions [Opens in a new window]

Abstract

Nigeria is on the verge of comprehensively reviewing its oil and gas laws. The review is aimed at, among other things, addressing the conflicts associated with the management of the resources and, especially, the affect on the people of the oil producing region of the country who have been vigorously protesting about their alienation from the resources. Drawing on the international law of public participation in natural resource management, this article seeks to develop a viable legislative framework for public participation in oil and gas decision-making that Nigeria can adopt. A viable legislative framework must take into account the various factors that shape the effectiveness of participation and the elements that promote the objectives of participation. It is premised on the ground that looking to international prescriptions might help to elucidate gaps in domestic laws, as well as alternatives to overcome them.

Information

Type
Research Article
Information
Journal of African Law , Volume 54 , Issue 2 , October 2010, pp. 184 - 211
Copyright
Copyright © School of Oriental and African Studies 2010

INTRODUCTION

Ever since oil was struck in commercial quantity in Nigeria in 1956, there has hardly been a sorer spot in Nigeria's polity than how to develop and manage the resources. There has been continuing conflict over the negative environmental effects of the extraction of the resources and the distribution of the resource wealth between the resource bearing region and the federal government. While the conflict has many causes, the 2006 Niger Delta Human Development Report (a people-centred and sustainable development framework that requires the involvement of all stakeholders for the development of the oil region) states that the principal cause is “the historical failure of governance at all levels”, corruption and discriminatory policies that exclude the affected local communities from participating in shaping the rules that govern their lives.Footnote 1 Research carried out by Human Rights Watch shows that money meant for development in the region has been largely squandered. Much of it gets diverted into private pockets, or is used to pacify those who might otherwise foment trouble. The research also shows that there is little evidence of the development of a proper plan in consultation with local communities as to what their real needs are.Footnote 2

Over the past few years, however, there has been series of steps initiated by the Nigerian federal government in its efforts to tackle the problem. In the beginning, these steps were largely institutional. The establishment of the Oil Mineral Producing Areas Development Commission (OMPADEC)Footnote 3 in 1992, replaced in 2000 with the Niger Delta Development Commission (NDDC),Footnote 4 was a product of these institutional interventions. The key objectives of these two bodies were largely the same: to rehabilitate and develop the oil producing region; to tackle ecological problems that result from oil exploitation; and to embark on development projects, among others.Footnote 5

More recently, attention has been focused on constitutional and legislative reforms. These reforms are distinct from the earlier interventions in that they are aimed, among other things, at emphasizing the basic rights and entitlements of the oil producing region and improving the balance between the region and the federal government. They would provide for transparency and some measure of certainty: two precursors of a peaceful co-existence. Hence, on 7 September 2007, the federal government inaugurated a 22 person Oil and Gas Committee and charged it with the responsibility of ensuring that the required legislative framework for restructuring the sector was undertaken before the restructuring actually commenced.Footnote 6 In line with that, the government initiated plans to review the Petroleum Act of 1969,Footnote 7 the major law regulating the oil and gas industry in Nigeria, and other petroleum-related laws.Footnote 8 This effort has resulted in legislative bills that are currently being debated in the National Assembly.

Of note also is the federal government's recent offer of an amnesty to the Niger Delta militants in exchange for the militants' disarmament. Although the terms of the amnesty have not been fully disclosed, the government intends to establish a programme to enable the militants to reintegrate into society.Footnote 9 As part of the amnesty deal, the government has dropped all criminal charges levelled against the leader of the Movement for the Emancipation of the Niger Delta, one of the major militant organizations in the region.Footnote 10 However, whether the amnesty will achieve its desired aims is seriously in doubt. The militants have continued to blow up oil locations and have even extended their operations to other regions far away from the Niger Delta, despite their declaration of a 60 day ceasefire when charges were dropped against one of their leaders.Footnote 11

However, this article is concerned with the legislative paradigm. On the front burner of this paradigm is the issue of how to develop a proper plan to integrate the local communities in the region into the mainstream of oil and gas development as a way of ensuring that their concerns are addressed. The basic aim is to develop a viable legislative framework for public participation that Nigeria can adopt: a legal framework that draws on the international law of public participation in natural resource management, taking into account the various factors that shape the effectiveness of participation and the elements that promote the objectives of participation. Looking to international prescriptions is important. It would help to identify gaps in existing domestic laws as well as alternatives. In a world that is becoming increasingly interconnected, domestic laws, however well-informed, may be based solely on parochial interests to the detriment of other countries and the international community as a whole, if they fail to reckon with international standards.

Owing to the variety of participation arrangements possible and the resulting heterogeneity of definitions of participation in the literature, no attempt is made here to define participation. To guide the reader, however, Cohen and Uphoff's typology of participation is suggested. Cohen and Uphoff think in terms of dimensions of participation: (1) what kind of participation is under consideration (is it participation in decision-making, participation in implementation, participation in benefits (or harmful consequences), or participation in evaluation?); (2) who is participating in it (local residents, local leaders, government personnel or foreign personnel); and (3) how is participation occurring (basis of participation, form of participation, extent of participation and effect of participation).Footnote 12 Although Cohen and Uphoff”s typology is rather broad, it encapsulates the array of things that people usually think about when they speak at a conceptual level about participation.

This article is not concerned with all aspects of participation. The aspect that is at issue here is participation in decision-making processes. That is, participation in decisions regarding the exploration and exploitation of oil and gas resources in Nigeria, including the environmental approval of oil and gas development projects. It is thus neither concerned with the substantive outcome of participation per se, nor with participation in terms of access to justice. These latter aspects, important as they are, can be more fruitfully undertaken in separate studies.Footnote 13

The analysis is set out as follows. First, there is a brief historical background to oil and gas development in Nigeria. Next, the article presents the international legal framework that forms the basis of the proposal. As there are many international instruments on participation, the article focus primarily on only two of them that are amply representative of the entire framework: the Convention on Access to Information, Access to Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention);Footnote 14 and the International Labour Organization Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169).Footnote 15 There follows a discussion of some of the challenges to public participation in Nigeria, together with recommendations to address them. The recommendations come with lessons from case studies that underscore the viability of those recommendations. The last part concludes.

It should be noted that the ILO Convention 169 concerns indigenous peoples. Use of its principles in this article should, however, not imply that the people of the Niger Delta region of Nigeria are indigenous people. In the author's view, they are not; they are simply minorities. This is contestable, but discussion of this issue is outside the scope of this article. Nevertheless, the situation in which the people of the Niger Delta find themselves today is similar to that in which “indigenous peoples” find themselves in their countries. The standards set by ILO Convention 169 with regard to indigenous peoples' participation in natural resource development are therefore useful, with necessary adaptations, for addressing the problems faced in the Niger Delta.

OIL AND GAS OPERATIONS IN NIGERIA: AN HISTORICAL REVIEW

It is not quite settled as to the exact year the search for oil commenced in Nigeria. According to the Nigerian National Petroleum Corporation (NNPC), the earliest attempt dates back to 1908Footnote 16 when the Nigerian Bitumen Corporation explored for oil in the Araromi area between Ijebu Ode in the present Ogun State and Okitipupa in the present Ondo State, both of Nigeria.Footnote 17 In 1906, John Bergheim claimed before the British colonial authorities that “based on his knowledge of the region's geology, petroleum existed in Southern Nigeria and that his company, the Nigerian Bitumen Corporation, could find it”.Footnote 18 Bergheim “had already achieved a monopoly on prospecting rights in Nigeria by buying up all other drilling licenses”.Footnote 19

According to Akpan, the Nigerian Bitumen Corporation had started exploration activities two years before Bergheim's presentation to the British colonial authorities, but had found no oil.Footnote 20 This suggests that the search for oil must have started before 1908.

Be that as it may, early exploration efforts were unsuccessful, so much that Shell D'Arcy, then sole concessionaire, seriously contemplated leaving Nigeria.Footnote 21 The situation was magnified by the misguided prophesies of British intellectuals who painted and spread abroad a gloomy picture of Africa's oil potential. Notable geographer Dudley Stamp declared pessimistically in 1953 that Africa had no oil “[a]part from the fields along the shores of the Gulf of Suez in Egypt, and a small yield from three tiny fields in Algeria and four in Morocco … The conditions favouring the accumulation of oil in quantity, in folds among sedimentary rocks on the margins of great sedimentary basins, d[id] not exist in Africa”.Footnote 22

Stamp was soon proved wrong, however. In mid-1956, barely three years after his declaration, Shell struck commercial quantities of oil in the little known Oloibiri, in the present Bayelsa State of Nigeria.Footnote 23 Towards the end of 1956, another find was made at Afam in Rivers State.Footnote 24 These finds were rapidly developed and by 1958 production had reached 5,100 barrels per day and Nigeria made its first shipment of oil to Europe.Footnote 25 Thus was Nigeria thrust onto the world petroleum map.

The development of the oil and gas industry in Nigeria occurred within a changing economic and political environment. Rising oil production rendered Nigeria almost completely dependent on oil.Footnote 26 The contribution of oil revenue to total government revenue rose from 23.6 per cent in 1970 to 82.1 per cent in 1974.Footnote 27 This surge “coincided with the increased centralization of political power in Nigeria. Until 1967, the country was divided into semi-autonomous regions each with considerable executive powers.”Footnote 28 However, in 1967 it was transformed into a 12 state structure, which considerably weakened the powers of the component units and consolidated the powers of the central government.Footnote 29 With regard to the oil and gas industry, Frynas observes that “the centralization of power meant that the affairs of the local people became increasingly remote from the decision-makers in the industry”.Footnote 30 With the creation of the Nigerian National Oil Corporation in 1971 (which later metamorphosed into the NNPC), the federal government became a joint venture partner with the foreign oil companies. This meant that, while the companies continued their operations in the local communities, they “worked much more closely with the government than before”.Footnote 31 In 1978 the Land Use Decree (now Act)Footnote 32 was promulgated. This act vested the ownership of all land in the stateFootnote 33 and permitted the compulsory acquisition of land by the state for “overriding public interest”, which included the “requirement of the land for mining purposes or oil pipelines and for purposes connected therewith”.Footnote 34 This further alienated the people from their traditional lands.

With the increasing importance of oil to the Nigerian economy, its utilization began to emerge in the early 1970s as a major grassroots mobilization premise. Some in the Niger Delta felt that the existing framework for exploiting the resources would not foster development in the region. They protested against environmental degradation, their non-participation in the development and management of the resources, the non-payment of compensation or inadequate compensation for oil operation damage, and underdevelopment of their area, despite huge revenues accruing from the resources.Footnote 35

It should be pointed out however that, although protests in the Niger Delta pre-dated the discovery of oil (the pre-oil protests were seen as ethnic / minority struggles), the discovery of oil gave them a new twist and brought into the public sphere a cacophony of local voices that otherwise might have remained marginal and unheard. Local people who had hitherto seen the government as being “too distant” to address their ecological concerns now began to see the oil and gas industry as harbouring economic and developmental opportunities.Footnote 36

Following these protests, the federal government established OMPADEC in 1992. OMPADEC was a development agency set up to administer directly the allocation accruing to the oil producing states from oil and gas revenue and to coordinate development projects in the region.Footnote 37 It is widely held that OMPADEC was unsuccessful.Footnote 38 It is alleged that it failed mainly because of the non-representation of the local communities on its governing board (although it was always headed by an indigene of one of the oil producing states), the non-participation of the local communities in the execution of its projects, and corruption among its officials.Footnote 39

Following its failure, OMPADEC was dissolved in 2000 and replaced with the NDDC. However, the NDDC is also bedevilled with some of OMPADEC's weaknesses. The NDDC Act makes no provision for the participation of local communities in the planning and execution of the commission's projects. The commission's initial efforts on infrastructural development did not emanate from consultation or an adequate appreciation of community needs.Footnote 40 It has also been said that the federal government failed to release all the statutory funds due to the commission, which further hampers its ability to discharge its duties.Footnote 41 However, the commission has designed a master plan for the development of the region and has held stakeholder meetings designed to collect input from local communities.Footnote 42

More recently, the federal government has embarked on a more holistic approach. Its planned Niger Delta summit, promised to be a good faith multi-stakeholder round table at which all parties would participate in a neutral atmosphere devoid of rancour to negotiate the problem, has failed, much to the chagrin of the government. It failed as a result of the government's inability to identify a person acceptable to the people of the Niger Delta who would head it and also as a result of the scepticism, if not opposition, of the Niger Deltans as to whether such a summit was even necessary.Footnote 43 However, the government's amnesty deal and proposed constitutional and legislative reforms are ongoing. These reforms offer the best opportunity for Nigeria to develop proper standards for the participation of the people of the oil producing region in oil and gas decisions that affect their livelihood.

THE INTERNATIONAL LAW OF PUBLIC PARTICIPATION

In international law, public participation is recognized as vital to sustainable development and in fact derives its strongest inspiration and most impressive elaboration from international and regional legal instruments. Some of the most prominent instruments embodying public participation include the 1982 World Charter for Nature,Footnote 44 the ILO Convention 169, the 1991 Convention on Environmental Impact Assessment in a Transboundary Context,Footnote 45 the 1992 Rio Declaration on Environment and Development,Footnote 46 the 1992 Convention on Biological DiversityFootnote 47 and the Aarhus Convention. Agenda 21, adopted at the Earth Summit in Rio in 1992, declares:

“One of the fundamental prerequisites for the achievement of sustainable development is broad public participation in decision-making. Furthermore, in the more specific context of environment and development, the need for new forms of participation has emerged. This includes the need of individuals, groups, and organizations to participate in environmental impact assessment procedures and to know about and participate in decisions, particularly those that potentially affect the communities in which they live and work.”Footnote 48

On the contrary, the popularity of public participation at the national level is irregular. While some countries have already institutionalized it in their laws and policies, the US being a prime example,Footnote 49 others have yet to grapple with it. In many of the latter countries, public protests aroused by a sense of injustice over the sacrifice of environmental and human health in the name of economic development are forcing governments to the discussion table.

The discussion below of the international law of public participation is organized around three broad themes: the activities in which participation is required; the question of who participates; and the question of what participation entails.

Activities in which participation is required

The provisions of the Aarhus Convention dealing with the content and extent of public consultation are contained in articles 6, 7 and 8; the activities to which they relate are listed in annex 1 to the convention. These activities include: energy (including oil and gas refineries, installations for gasification and liquefaction, nuclear power stations, etc); the mineral industry; the chemical industry; waste management, extraction of petroleum and natural gas for commercial purposes; pipelines for the transport of gas, oil or other chemicals; etc.Footnote 50 However, parties are also obliged to apply the provisions of article 6, in accordance with their national laws, to decisions on activities not listed in annex 1 but which may have a significant effect on the environment.Footnote 51

Besides participation in these stated and un-stated activities, the Aarhus Convention also provides for participation during the preparation of plans and programmes relating to the environmentFootnote 52 as well as during the preparation, by public authorities, of executive regulations and other generally applicable legally binding rules that may significantly affect the environment.Footnote 53

In applying the provisions of the convention, the Aarhus Compliance Committee has held that Armenia's failure to allow public participation in decision-making on modification of land use designation and zoning as well as on leasing of certain plots of land in an agricultural area,Footnote 54 and the Ukraine's failure to allow public participation on the construction of a navigable canal,Footnote 55 violated article 6 of the convention.

Article 15(1) of the ILO Convention 169 requires states to safeguard indigenous peoples' rights to the natural resources on their lands, including their right to participate in the use, management and conservation of those resources. Indigenous peoples are to have a say in any resource exploration on their territories and to benefit from those activities.Footnote 56 Thus, what the convention grants indigenous peoples are merely participatory rights over the resources, and not ownership rights over the resources. Ownership is to be determined by national law. Further, states shall consult the peoples concerned whenever consideration is being given to legislative and administrative measures that may affect them directly.Footnote 57 By implication, indigenous peoples shall be permitted to express their concerns about any proposed legislation on the development and management of natural resources located on their lands.

In applying the provisions of the ILO Convention 169, the committee responsible for compliance (ILO Committee) has held that consultations must be held when indigenous interests are involved, including: the creation of legislative measures that regulate the consultation process itself;Footnote 58 the creation of constitutional provisions concerning indigenous peoples;Footnote 59 the development of lands adjacent to or in indigenous territories; and even the complete destruction of those lands.Footnote 60 As James Anaya points out, “[s]ince indigenous peoples' underlying interests are significantly different in each of those circumstances, we would expect that the nature and extent of consultations required would also differ”.Footnote 61

Who participates?

Who constitute the members of the public entitled to participate? A review of international legal instruments shows that there are six possible broad categories of participants: the specific public concerned; the local community or people; indigenous people; non-governmental organizations (NGOs); and the historically marginalized groups of women and youth. The rationale for specifically including these marginalized groups, as Michael Anderson points out, is the moral view that marginalized groups should have a say in environmental decision-making because they suffer most from environmental degradation.Footnote 62 Among these various categories, “the public concerned” and “local communities” bear some elaboration.

The public concerned

Article 2(4) of the Aarhus Convention defines “the public” as “one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups”. This definition would include individuals, NGOs, grassroots organizations, youth, women's groups, and corporations and other business organizations. Thus, as Rodenhoff indicates, the term “public” is used as “the sum total of all of society's potential actors”.Footnote 63

This does not mean, however, that the public entitled to make submissions under the Aarhus Convention comprises the whole world. Rather, such public must have some interest in the subject matter of the submission. It must somehow be “concerned” with the activity complained of.

The public concerned means “the public affected or likely to be affected by, or having an interest in, the environmental decision-making”.Footnote 64 The Aarhus Convention specifically includes among the public concerned NGOs promoting environmental protection and meeting any requirements under the national law of a member state concerned.Footnote 65 Therefore for an NGO to come within the definition of “the public concerned”, it must have environmental protection as one of its main objectives.Footnote 66

The question arises as to who the actual members of the public concerned are. This may be answered by identifying criteria for determining them. The criteria can be set on the basis of spatial proximity, dependence on the natural resources in question, level of concern for the resources in question, or a combination of these factors.Footnote 67 Where the project has potential transboundary effects, the public concerned would extend to individuals, groups, NGOs and even foreign states that have no physical presence in the state where the project is to be carried out but which would potentially be affected based on an environmental impact assessment.

The local community or people

The participation of local communities is required by Agenda 21 (paragraph 23), the Rio Declaration (principle 22), the Biodiversity Convention (article 8(j)) and the Desertification Convention (articles 3(a), 10(2) and 19(1)), among others. The basis for this requirement is at least two-fold, each sufficient by itself: government approved mineral and other development projects have displaced local farmers, hunters, nomads and even entire communities;Footnote 68 and local people possess knowledge of their environment that is vital to the conservation and sustainable use of resources and that can facilitate local adaptability.Footnote 69 They therefore have a critical role in natural resource and environmental management and development.

A remarkable feature of the international legal framework is the absence of a definition of “local community”. In Nigeria too, local community is not defined within any national law although the term is widely used. However, as Omorogbe points out, there is no controversy in Nigeria over what a local community is, or who is a member of a community:

“In local parlance and ordinary meanings the local communities are those who are customarily resident or who are widely known as the owners of the land upon which the development is taking place. In Nigeria, one's origin continues to be determined by the place from which one's family originated. It takes several generations for a settler or the settlers' descendants to be accepted as being indigenes of the place of settlement. Therefore a member of a community is a person who originated from the community in question. This is irrespective of where any of these persons may habitually reside. No matter how long a person resides in a town that person remains a member of his or her ethnic group and a citizen of his or her home town of origin.”Footnote 70

The question arises as to which communities, apart from those within the immediate proximity of a proposed activity, can be said to be entitled to participate. The international law of public participation seems to offer no clear guidance for determining this. But we can draw on the negligence-based common law doctrine of reasonable foreseeability, so that those communities which, though not within the immediate neighbourhood of the proposed activity, would be reasonably foreseeably affected by it, should be entitled to participate in the decision-making process. This would go a long way to reduce the likelihood of excluding those who otherwise should have been included.Footnote 71 This is in tandem with the precautionary principle of sustainable development which proverbially states, “better safe than sorry”. Otherwise put, it means that “[w]here there are threats of serious or irreversible environmental damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation”.Footnote 72 In chronicling the historical “use, neglect and possible misuse of the concept of precaution in dealing with a selection of occupational, public and environmental hazards”, the European Environment Agency has noted the importance of “trusted and shared information for effective policy-making and stakeholder participation in decision-making, especially in the context of complexity, ignorance, high stakes and the need for collective learning”.Footnote 73 It noted the precautionary value of public participation in decision-making:

“Public acceptability of risks requires public participation in the decisions that create and manage such risks, including the consideration of values, attitudes and overall benefits. Sound public policy-making on issues involving science therefore requires more than good science: ethical as well as economic choices are at stake. Such matters concern not only the experts and the politicians but all of us.”Footnote 74

This principle can be regarded as a key rationale for public participation.

Content and extent of participation

Participation entails informing the affected public about a proposed activity

The duty to consult the public entails the duty to inform them about the proposed activity and the application on which a decision will be taken.Footnote 75 The information is meant to enable the public to prepare themselves to participate effectively during the decision-making process. It shall include:

  1. “(a) The nature of possible decisions or the draft decision;

  2. (b) The public authority responsible for making the decision;

  3. (c) The envisaged procedure, including, as and when this information can be provided:

    1. (i) The commencement of the procedure;

    2. (ii) The opportunities for the public to participate;

    3. (iii) The time and venue of any envisaged public hearing;

    4. (iv) An indication of the public authority from which relevant information can be obtained and where the relevant information has been deposited for examination by the public;

    5. (v) An indication of the relevant public authority or any other official body to which comments or questions can be submitted and of the time schedule for transmittal of comments or questions; and

    6. (vi) An indication of what environmental information relevant to the proposed activity is available; and

  4. (d) The fact that the activity is subject to a national or transboundary environmental impact assessment procedure.”Footnote 76

The relevant information shall include, at the minimum, the following:

  1. “(a) A description of the site and the physical and technical characteristics of the proposed activity, including an estimate of the expected residues and emissions;

  2. (b) A description of the significant effects of the proposed activity on the environment;

  3. (c) A description of the measures envisaged to prevent and/or reduce the effects, including emissions;

  4. (d) A non-technical summary of the above;

  5. (e) An outline of the main alternatives studied by the applicant; and

  6. (f) In accordance with national legislation, the main reports and advice issued to the public authority at the time when the public concerned shall be informed in accordance with paragraph 2 above.”Footnote 77

In applying the provisions of article 6, the Aarhus Compliance Committee has determined that participation in decision-making entails that public authorities engaged in the decision-making provide the affected public all documentation relevant to the decision-making process. In the communication filed by Ecopravo-Lviv against Ukraine,Footnote 78 the Ukrainian Ministry of Environment had permitted construction of a navigable canal, the Danube-Black Sea, in the Ukrainian part of the Danube Delta. The process used by the ministry to permit the construction of the canal was to approve conclusions of the State Environmental Expertiza of the “Technical-Economical Grounding for Investments to Construct the Navigable Canal”.Footnote 79 The decision-making procedure and timeframes of the state environmental assessment of the proposed canal did not allow any public participation. This included refusing to provide the environmental documentation relevant to the decision-making process and the absence of any procedures for public participation. In fact, when the communicant learnt from the mass media that the ministry might be carrying out an environmental assessment and requested the ministry to provide it with the documentation of the evaluation of environmental impacts submitted to the ministry by the ministry's consultants, the ministry only sent the communicant a two page summary of the preliminary expert scientific environmental assessment. Taking into account the degree of the non-compliance and noting with regret that Ukraine did not respond to the communication, the committee held that Ukraine violated article 6 of the Aarhus Convention.Footnote 80

Early participation

Public consultation should start at the early stages of the project. The danger of public participation not starting at an early stage is that the chances of all the concerns of the public being considered at a later stage are not high, since they may entail considerable overhauling of the result of what is often a long and arduous process. Government's willingness to require such overhauling is doubtful since cost considerations may induce it to promise the public that any negative impact identified during the implementation of the project will be taken care of: a reactive (as opposed to preventative) approach. Government is likely to overstress other important benefits of the project to the country as a whole, but in particular to the local communities who are complaining of lack of consultation. Given that the public is usually in favour of a project coming to fruition, they are likely to disregard its environmental effects if persuaded to do so, despite their lack of participation.

Periodic participation

Public consultation should not stop with a one-off consultation at the early stage.Footnote 81 Periodic and timely consultations should take place throughout all the stages of the project. As one commentator has emphasized, for consultation to be meaningful, it should not end with a comprehensive agreement.Footnote 82 There should be an ongoing forum for resolving problems as they arise, the reason being that “[m]ineral-based development always creates problems that local communities cannot predict … A credible, ongoing multi-stakeholder dialogue – instead of a ‘once and for all’ pact, in which one side was grievously uninformed – might [give] communities a constructive way to address issues as they arise”.Footnote 83 Moreover, “generational changes among local peoples” can result in well-crafted agreements becoming obsolete over the course of a project.Footnote 84 Hence article 6(10) of the Aarhus Convention provides that “when a public authority reconsiders or updates the operating conditions for an activity”, it shall provide fresh public consultation.

In a complaint concerning the Embera Katio people of Colombia, the ILO Committee held that, even though the Colombian government had engaged in a consultative process that had in fact led to an agreement with the Embera Katio people concerning the flooding of their lands for a hydroelectric project, the duty to consult had not been met fully because further consultation was necessary in light of modifications to the project after the agreement.Footnote 85 The committee emphasized that consultation should be understood in connection with the general mandate of the convention that states develop, “with the participation of the peoples concerned, coordinated and systematic action to protect their rights and to guarantee respect for their integrity”.Footnote 86 The committee's holding in this complaint resonates with article 6(10) of the Aarhus Convention cited above.

Duty on firms to consult potentially affected public

The Aarhus Convention recognizes the importance of states imposing a duty to consult on firms that execute projects in the decision-making process. Its article 6(5) enjoins contracting parties to encourage firms that propose to apply for a project permit to identify themselves to the public that would be potentially affected by their project, enter into discussions with such public, and provide information to such public regarding the objectives of their application before applying for a permit.

Strengthening of local institutions

The ILO Convention 169 recognizes that effective participation requires the strengthening of local institutions. It therefore obliges states to establish means by which indigenous institutions can be strengthened and, in appropriate cases, to provide the necessary resources.Footnote 87 The establishment of “participant funding” schemes is a direct application of this provision. Such schemes are designed to “redress the financial imbalance among parties and support full and effective public participation”.Footnote 88 They help “financially challenged affected parties” to have access to the participation mechanism.Footnote 89 They are particularly important given that indigenous and local people historically belong to the poorest of society. Without some form of financial assistance, many of them will be unable adequately to grasp participation opportunities offered to them.

Participation shall be carried out in good faith

It is also essential that the consultations be carried out in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.Footnote 90 Thus, consensus is seen as the “desired” result of participation.Footnote 91 According to Clavero, the ILO Convention 169 assumes that a guarantee of informed participation, along with the good faith with which it is to be undertaken, can result in legitimate policies on matters in which no consent is reached.Footnote 92

In a complaint concerning oil exploration in Ecuador, the Ecuadorian government was alleged to have failed to adopt satisfactory measures for the observance of the ILO Convention 169. Concessions for hydrocarbons and oil explorations had been granted with either no or very perfunctory consultations with indigenous people. The ILO Committee held that article 6(2) of the convention (which requires consultations to be made in good faith, through culturally appropriate procedures, and with the objective of reaching an agreement with the affected people) had not been complied with. It noted that consultation required establishing a genuine dialogue between both parties, characterized by communication and understanding, mutual respect, good faith and the sincere wish to reach a common accord. A simple information meeting cannot be considered as complying with the provisions of the convention.Footnote 93

This case is of particular significance in many respects. First, the project was established before the convention came into force in Ecuador.Footnote 94 Ecuador had argued that the consultations required under the convention were inapplicable to the project because of the principle of non-retroactivity of the law. However, the ILO Committee opined that, when the convention came into force, the obligation to consult persons likely to be affected arose automatically in respect of the continuation of the project.Footnote 95 This is significant for Nigeria. When the ongoing reforms in Nigeria come into force, the new consultation requirements they would provide should apply to the continuation of projects that commenced before them.

Secondly, Ecuador had argued that it did not consider it appropriate to enter into consultations because oil was under state ownership and the right to subsurface products (unlike surface products) was part of state patrimony.Footnote 96 The ILO Committee acknowledged that national legislation in many countries, including Ecuador, vests rights to subsurface resources in the state, but it recalled article 15(2) of the convention:

“In cases in which the State retains the ownership of mineral or subsurface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands.”Footnote 97

As Clavero puts it: “[t]he Convention directly assigns to states rights over these natural resources, charging them with the mission of communicating to and participating with indigenous peoples … There is no indigenous right over the natural resources themselves, but rather a right to participate in the policy-making processes of the states that control resources.”Footnote 98

Affected public shall be allowed to decide their priorities

Because “the one who rides the donkey does not know the ground is hot”,Footnote 99 “[t]he peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development”.Footnote 100 They shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.Footnote 101 States shall carry out appropriate studies, with the cooperation of the peoples concerned, to assess the overall impact of proposed development activities on the peoples.Footnote 102 As Chambers has stressed, “[p]riorities are not those projected by professionals, but those perceived by the poor. The goal of development is not growth as defined by normal professionals, but well-being as defined by the poor for themselves”.Footnote 103

Mode of participation

The participation procedure shall “allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity”.Footnote 104 It is important that members of the public be allowed reasonable time to prepare themselves.Footnote 105 Each party shall ensure not only that due consideration is taken, in its decision, of the outcome of the public participation,Footnote 106 but also that the public is informed of the decision once it is taken in accordance with appropriate procedures and allowed access to the text of the decision along with the reasons and considerations upon which the decision is based.Footnote 107

Representativity

Article 6(1)(a) of the ILO Convention 169 requires states to consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative and administrative measures that may affect them directly.Footnote 108 In the complaint against Ecuador, the Independent Federation of the Shuar People of Ecuador (FIPSE), on 70 per cent of whose territory the hydrocarbon explorations were taking place, had, “in view of the negative experiences witnessed in oil mining activities in the north of the country”, decided “not to allow any negotiations between individual members or any of its centres and associations and the Arco company” and declared that any attempt by Arco in this regard would be considered a violation of the integrity of the Shuar people and its organizations and as an open infringement of the Shuar people's rights as recognized in the Ecuadorian Constitution and in the convention. It alleged that Arco tried to divide the local organizations and created fictitious committees to coordinate their activities and to denigrate indigenous organizations in the eyes of the public.Footnote 109 This raised the issue of representativity. In dealing with this, the committee opined that the issue of representativity is a vital component of consultation and that, wherever it is lacking, “the resulting consultations will not comply with the requirements of the Convention.”Footnote 110 The committee determined that not only was the appropriate consultation not carried out with an organization clearly representative of the peoples concerned in this case, but that the consultations that were carried out excluded such an organization, despite the public statement issued by the FIPSE in which it decided “not to allow any negotiation between individual members or any of its centres and associations and the Arco company”.Footnote 111 Thus, the people must be allowed to choose freely their own representatives, and not have representatives foisted on them. Granting that it could be difficult to determine in many situations who represents any given community, the committee considered article 6(1)(c) of the convention which stipulates that governments shall “establish means for the full development of the peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary”.Footnote 112 The ILO Committee therefore recommended that Ecuador take necessary measures to ensure that the required consultations be carried out in accordance with the provisions of article 6 of the convention, taking into account in particular the representativity of the indigenous organizations consulted.Footnote 113

The issue of representativity is particularly critical for Nigeria, which is a highly multiethnic country. There is bound to be some level of friction among the ethnic groups. The question of who represents a community at any given time will therefore be a recurring one. How this is managed will depend significantly on the ability of the legal mechanism to provide clear guidelines for determining who represents a community.

In summary, both the Aarhus Convention and the ILO Convention 169 provide for public participation in three different types of decisions: decisions on specific activities; decisions concerning plans, programs and policies; and decisions concerning the preparation of regulatory and generally applicable legally binding normative instruments. Both conventions contain detailed provisions on what public participation entails. The compliance committees of the two conventions are judicially active and draw on general principles of international law in their interpretation of the conventions. The jurisprudence thus developed represents a useful participation sourcebook from which Nigeria can draw.

CHALLENGES AND RECOMMENDATIONS

Public participation is fraught with challenges, some of which are very complex. But the challenges are not insurmountable. With sustained public participation based on clear and flexible legal guidelines implemented in good faith, the challenges can be managed. This article now presents some of the major challenges to public participation in oil and gas management in Nigeria and offers recommendations to address them.

Challenges

The challenges that will militate against public participation in oil and gas decision-making in Nigeria are rooted in two key factors: community fragmentation; and the socio-economic goals of the people of the oil region. The following discussion is therefore organized along these two themes.

Community fragmentation

Even though, as stated earlier, there is no controversy in Nigeria as to what is a community or who is a member of a community, it is the author's opinion that such a perception does not lay the question to rest. It should not be taken to mean that “community” is one homogeneous, unified entity with common interests and values. This is starkly apparent during the implementation of public participation. Actually, existing communities hardly correspond to the idea of small, harmonious and cooperative entities that such a representation depicts.Footnote 114

The Niger Delta represents a classical example of community fragmentation. With respect to culture and ethnicity, it is “extremely heterogeneous”.Footnote 115 The five major linguistic and cultural groups (the Ijoid, Edoid, Delta Cross, Yoruboid and Igboid) are each composed of numerous sub-groups.Footnote 116 Given the interactions among these groups, conflicts are rife in the region. The conflicts are intra-community, inter-community, inter-ethnic, and community and oil company conflicts. The conflicts arise most often in struggles over the sharing of benefits from oil and over property rights. They often involve youths, members of a clan, village or ethnic group with some form of communal identity. The Ogbogoro crisis provides an example of such a conflict at the intra-community level. Under dispute was a 1978 agreement that the community reached with Atlantic Richfield Company (ARCO). The agreement required ARCO to pay an annual rent to the community. In 1993, the community signed an agreement with ARCO's successors-in-title that promised higher rent, contracts and jobs to the community. This raised the stakes for the traditional head of the community, because he was responsible for distributing the rent to the community. At the same time, a new candidate successfully claimed the right to the traditional stool. This divided the community into two camps and resulted in a violent rage that devastated the community.Footnote 117

Since public participation entails the participation of multiple actors, community fragmentation constitutes a serious threat to it.

Socio-economic priorities

According to the Niger Delta Human Development Report, Niger Delta's human development index (HDI) score, “a measure of well-being encompassing the longevity of life, knowledge and a decent standard of living”, stood (as at 2006) at a low value of 0.564 (with 1 being the highest score).Footnote 118 The report notes that a “disaggregation of the HDI score” at the local government level shows that regional and state scores blur inequalities in human development among oil producing communities in the region:

“In spite of the efforts of oil companies to enhance the well-being of the communities where they operate through several development initiatives, particularly in social infrastructure, there is still wide disparity in the performances of local government areas. The report discovers that most of the best performing local government areas on the HDI are the urban ones, while the majority of the poorly performing ones are those based in rural areas. The local government areas without oil facilities appear to fare better on the poverty index than those with oil facilities; an indication of unequal distribution of oil revenues. The poor outcomes of development interventions of oil companies are, to some extent, due to lack of a systematic link to government development plans.”Footnote 119

Kellert et al examined participatory natural resource management case studies in Nepal, Kenya and the United States with a view to ascertaining the extent to which participation delivers its promises. They find that in Nepal and Kenya, and to a lesser degree in the United States, “socio-economic goals … typically assumed much higher priority, at times compromising and subverting biodiversity conservation objectives”. In Nepal and Kenya, local attention largely focused on community development and social welfare, with most residents viewing community participatory natural resource management as a means of pursuing socio-economic advancement and rarely as a device for promoting biodiversity protection. However, the US situation appeared to advance biodiversity protection. Ecological information improved, and coordination of conservation efforts was enhanced among diverse stakeholders. The scholars found that strong legal mandates and relatively more evolved and financially supported management regimes contributed to connecting conservation better with development objectives. However, societal forces inimical to conservation, as well as an emphasis on economic and political objectives, occasionally subordinated biodiversity protection goals.Footnote 120 Presumably, lack of a strong legal mandate, lack of, or relatively low, financial support to the management regimes, coupled with the peoples' yearning for basic socio-economic needs might have contributed immensely to the failure of the management regimes in Nepal and Kenya to promote biodiversity sustainability.

In summary, both community fragmentation and socio-economic priorities constitute a serious threat to public participation.

Recommendations

This article calls on Nigeria to adopt the principles of public participation as articulated in international and regional legal instruments and as interpreted and elaborated in the decisions of the implementation committees. The principles should be reflected in domestic legislation governing oil and gas development. As suggested earlier, even though the ILO Convention 169 applies to indigenous (and tribal) peoples alone, and the concept of indigenous peoples does not apply to Nigeria, the natural resource induced problems suffered by the people of the oil producing region of Nigeria are similar to those suffered by indigenous peoples in the countries where they do exist. Although it does not follow that the solutions will necessarily be the same, the opinion here is that the solutions proffered by the ILO Convention 169 can be adapted to the Nigerian situation without allowing the Niger Deltans to claim to be indigenous peoples.

Secondly, firms should be legally required to consult the public who will be potentially affected by their projects. Such consultation should begin at the planning stage. This would help to create a peaceful working environment for the firms and their host communities, which would be crucial to the successful execution of the projects and to the overall operations of the firms in the area. “By engaging with local community leaders in the planning, siting and development of facilities or operations, companies are better placed to identify and respond to local needs and interests”.Footnote 121 It would provide a forum for addressing some of the issues that have given rise to conflicts in Nigeria.

Jason Switzer illustrates the dangers of lack of firms' consultation with the potentially affected public, citing a case in Ecuador. Several local communities had sought a meeting with the management of a subsidiary of Mitsubishi. They were concerned both by the firm's failure to consult them in the establishment of the mine, and by the environmental threats arising from the mine. After the firm's management ignored their peaceful protests for three years, they took the law into their hands and looted and destroyed valuable goods and equipment from the mine site.Footnote 122 This has also been the experience in the Niger Delta where vandalism and kidnapping for ransom (both aimed at drawing attention to the plight of the region) have become the bane of the country and the oil companies. Even where the companies appear willing to dialogue with the communities, the companies often approach the discussion table with a predetermined stand from which they are not ready to budge. This often results in a breakdown of negotiations and the communities' resort to violence to compel agreement.Footnote 123 However, firms that respect community concerns and seek to carry them along can reduce conflicts and thus reduce their security costs substantially. In Papua New Guinea, for instance, Placer Dome needed to protect the electrical cables that powered its Porgera mine. Instead of hiring a private security company, they were able to protect their cables at less cost by paying attention to the concerns of the communities that lived along the cables' path.Footnote 124 This is in contrast to the practice of many oil companies in Nigeria who engage state security (especially soldiers) to guard their pipelines that run through the communities. Perhaps not surprisingly, the soldiers resort to brutalizing members of the communities who dare to remonstrate against the operations of the oil companies.

West Papua, Indonesia, shares similar features with the Niger Delta of Nigeria. Like the Niger Delta, West Papua is a volatile region for mineral development due to its extreme poverty, mountainous terrain (the Niger Delta rather has a swampy terrain), peripheral location, and sharply distinct culture and history. A copper mine operated by Freeport-McMoran near the town of Timika was the site of regular unrest, thanks in part to the Indonesian military presence. To avoid the mistakes of Freeport-McMoran, BP employs ground-breaking measures to protect human rights and avoid abuses by security forces at its own natural gas site in Tangguh. The measures include wide-ranging consultations with local communities from the early stage of the project, recruiting local Papuans to create a community-based security outfit, and engaging NGOs in developing, monitoring and appraising the project. After it established that its site was near a village of 127 families, BP procured the World Bank's help in fashioning a relocation agreement with the community. It has also sought independent evaluations of its operations, has carried out environmental impact and human rights assessments, and has established an independent advisory panel to subject the non-commercial aspects of the project to objective appraisal. When disputes arise between BP, the villagers and government, they are settled amicably through dialogue and concession.Footnote 125

Furthermore, firms, especially transnational firms, have important skills and experience with extractive projects which they can bring to the dialogue. They have long-term business interests “whereas many governments cannot plan beyond the next election”.Footnote 126 Governments may also have no credibility in the eyes of the affected public. Since firms certainly suffer the worst when conflicts arise between local communities and the government over oil and gas development projects, and in fact are usually blamed for those conflicts, they have a strong interest in seeking preventative measures.Footnote 127

Thirdly, the importance of involving NGOs cannot be over-emphasized. The importance of their role in conflict prevention was acknowledged by the Commission on Global Governance in its report Our Global Neighbourhood. The report conceptualized the practices and challenges of global governance and noted that: “[c]ivil society organizations play important roles in identifying genuine development needs, initiating projects, and in some cases implementing projects as funding or co-funding agencies. In projects funded by governments and intergovernmental agencies, involving NGOs in the preparation and evaluation of projects may increase the likelihood of success”.Footnote 128

As Tanner has noted: “NGOs and other humanitarian organizations have the advantage of being in dispute-prone areas for years before conflict or violence actually breaks out. Their knowledge of local society and culture and the local reputation they have built up cannot be acquired instantly by outside entities that choose to get involved in that specific area once conflict has erupted.”Footnote 129

NGOs have experience in protecting the rights and interests of local communities, which the communities themselves may lack. They also have a level of credibility among local peoples that neither government nor firms enjoy. This credibility can be essential to the dialogue process. Because of their experience in working with local people, NGOs will be more accurate than government in identifying stakeholders. They will understand better the multiple actors with multiple interests that make up stakeholders, the processes through which these actors interrelate, and the institutional arrangements that structure their interactions. NGOs can: oversee local development programs that are funded with oil revenues; monitor the activities of firms, government and other actors; and provide early warnings that can nip looming conflicts in the bud.Footnote 130

The author recommends that Nigerian law should follow the Aarhus Convention by expressly giving participatory rights to NGOs in oil and gas decision-making.

Fourthly, it has been said that much of the rhetorical weight of participation comes from “papering over” the differences that might exist within actual stakeholders.Footnote 131 As one scholar has astutely observed, “[i]f participation means that the voiceless gain a voice, we should expect this to bring some conflict. It will challenge power relations, both within any individual project and in wider society. The absence of conflict in many supposedly ‘participatory’ programmes is something that should raise our suspicion. Change hurts.”Footnote 132

Moreover, “the issues of representation are particularly controversial because either too little or too much equity may result in creating or escalating conflicts”.Footnote 133

However, in their earlier mentioned studies, Kellert et al report that, although participation at times fostered conflict by unrealistically inflating people's expectations of what participation could accomplish and diffusing decision-making authority among a wide array of interests and stakeholders, participation offered a more effective institutional basis for resolving disputes, and that the experience of conflict can be a creative and productive process.Footnote 134 Therefore, to address potential conflicts, this article recommends that the law should provide for a conflict resolution mechanism with full participation of NGOs who would serve as both facilitators and mediators. This would also serve to manage the issue of representativity. Further on this, local governments should provide bye-laws that will spell out the modalities for representation by which communities can abide. For instance, communities may be required to register their community development committees with the local government, which will then serve as the communities' official mouthpiece. Local governments can go further by partnering with communities in creating and educating the committees.

CONCLUSION

This article has sought to draw Nigeria's legislative gaze to the international law of public participation in natural resource management. At a time when the country is on the verge of comprehensively reforming its oil and gas laws with a view to addressing the concerns that the people of the region where the oil is extracted have been vigorously expressing for decades, at a time when the country is seeking to enlist the help of the international community in its domestic problems, an attempt such as is made in this article is surely in order. This is not to say that international law has provided all there is to provide with regard to public participation, but it has set useful standards. If Nigeria meets these international standards, which indeed it has a moral duty to do given its appeal to the international community, there is little doubt that the ongoing natural resource conflict in Nigeria will be doused to a manageable level. The ongoing review of Nigeria's major oil and gas laws is an opportunity that should not be missed. The significance of this study will therefore lie in the difference it is capable of making in the quality of future oil and gas legislation in Nigeria.

Footnotes

Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid

References

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3 Decree No 23 of 1992.

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7 Cap 350, LFN 1990.

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13 Note that the term participation is often used interchangeably with other terms like “public consultation”, “local community involvement”, “indigenous peoples' consultation”, “multi-stakeholder participation”, etc. But the term most commonly used in international instruments and in the literature is “public participation”. All the terms are used interchangeably in this article. Although the term “consultation” has a more technical meaning than “participation”, no such meaning is intended here.

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33 Land Use Decree, sec 1.

34 Id, sec 28.

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41 See O Oham “Nigeria: N26.4 billion NDDC unspent funds missing, say reps” (20 July 2009) Daily Independent, available at: <http://allafrica.com/stories/200907200216.html> (last accessed 27 July 2009).

42 Omorogbe “The legal framework for public participation”, above at note 38 at 560.

43 See N Tattersall “Nigeria oil rebels reject Niger Delta summit” (17 June 2008) Reuters, available at: <http://www.reuters.com/article/latestCrisis/idUSL17190258> (last accessed 27 July 2009); S Adebayo “N'Delta: FG tips Kofi Annan to chair summit” (20 April 2008) Punch, available at: <http://www.e-punch.com> (last accessed 20 April 2008); S Adebayo, “Niger Delta summit: Nigeria asks UN for Gambari” (26 April 2008) Punch, available at: <http://www.e-punch.com> (last accessed 26 April 2008).

44 GA res 37/7 (annex), UN GAOR, 37th sess, supp no 51 at 17, UN doc A/37/51 (1982), 22 ILM 455 (1983), arts 16 and 23.

45 25 February 1991, 30 ILM 800 (1991), arts 2(6) and 4(2).

46 13 June 1992: UN doc A/CONF.151/26 (vol 1) (1992), 13 ILM 874 (1992), principle 10.

47 5 June 1992: 1760 UNTS 79, 31 ILM 818 (1992).

48 See the preamble to chap 23 of Agenda 21, approved by the UN Conference on Environment and Development on 13 June 1992: UN doc A/CONF.151/26 (vols I–III) (1992).

49 C Campbell-Mohn “The human dimension in twenty-first century energy and natural resources development: The new law of ‘public rights’ in private development in the United States” in Zillman et al (eds) Human Rights in Natural Resource Development, above at note 38, 233 at 233, noting that “[i]n the tapestry of laws that govern energy and natural resources in the United States, public participation is the warp – the string that supports and gives it its shape.”

50 Aarhus Convention, art 6(1)(a).

51 Id, art 6(1)(b). The term “proposed activity” is not defined in the convention; therefore parties have discretion to determine the relevant activity. However, they are bound by the rules and principles of international environmental law and, where relevant, European Community environmental law: Rodenhoff, V “The Aarhus Convention and its implications for the ‘institutions’ of the European Community” (2002) 11/3Review of European Community & International Environmental Law 343 at 347CrossRefGoogle Scholar.

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54 Comm filed by the Centre for Regional Development/Transparency International Armenia and Sakharov Armenia Botanical Society (all Armenian NGOs) against Armenia: comm ACCC/C/2004/08.

55 Comm filed by Ecopravo-Lviv against Ukraine: comm ACCC/C/2004/03.

56 ILO Convention 169, art 15(2). Under art 13(2), the concept of indigenous lands is deemed to cover “the total environment of the areas which the peoples concerned occupy or otherwise use”. In other words, “lands” includes territories.

57 Id, art 6(1)(a).

58 Report of the committee set up to examine the representation by the Central Unitary Workers' Union (CUT) alleging non-observance by Colombia of the Indigenous and Tribal Peoples Convention 1989 (no 169), made under art 24 of the ILO Constitution: ILO doc GB.282/14/2 (21 November 2001) (Colombia Report). The report decried lack of consultation in three situations: the passage of a law governing consultation with indigenous peoples; the construction of a highway through indigenous lands; and the granting of permission for oil exploration in indigenous lands).

59 Report of the committee set up to examine the representation (by the Union of Workers of the Autonomous University of Mexico and the Independent Union of Workers of La Jornanda) alleging non-observance by Mexico of the Indigenous and Tribal Peoples Convention 1989 (no 169), made under art 24 of the ILO Constitution: ILO doc GB.289/17/3 (19 March 2004).

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65 Ibid.

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71 For a classical articulation of the doctrine, see the famous English case Wagon Mound No 1 (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd) [1961] AC 388, 1 All ER 404. This case can be married with the earlier equally famous case of Donoghue v Stevenson [1932] All ER 1 where the English House of Lords, persuaded by the American case of MacPherson v Buick Motor Co [1916] 217 NY 382, 111 NE 1050, articulated the tortious principle of a general duty of care in what is popularly known as “the neighbour principle”: “The rule that you are to love your neighbour becomes in law you must not injure your neighbour, and the lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.”

72 Rio Declaration, above at note 46, principle 15.

73 European Environment Agency (EEA) “Late lessons from early warnings: The precautionary principle 1896–2000” Environmental Issue Report No 22 (2001, EEA) at preface.

74 Ibid.

75 Aarhus Convention, art 6(2)(a).

76 Id, (b)–(e).

77 Id, art 6(6)(a)–(f). This, however, is without prejudice to the right of parties to refuse to disclose certain information in accordance with arts 4(3) and (4), namely that: the public authority to which the request is addressed does not hold the information requested; or the request is manifestly unreasonable or formulated in too general a manner; or the disclosure would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law, or adversely affect international relations, national defence or public security, etc: id, art 6(6).

78 See above at note 55.

79 Comm ACCC/C/2004/03, above at note 55, para 7.

80 Findings and recommendations with respect to compliance by specific parties (Ukraine (1)): ECE/MP.PP/C1/2005/2/Add.3 (14 March 2005).

81 Aarhus Convention, art 6(3).

82 M Ross “Mineral wealth and equitable development” (background report for the World Development Report 2006) at 23–24, available at: <http://siteresources.worldbank.org/INTWDR2006/Resources/477383-1118673432908/Mineral_Wealth_and_Equitable_Development.pdf> (last accessed 29 May 2009).

83 Id at 24.

84 Ibid.

85 Report of the committee set up to examine the representation (by CUT and the Colombian Medical Trade Union Association) alleging non-observance by Colombia of the Indigenous and Tribal Peoples Convention 1989 (no 169), made under art 24 of the ILO Constitution: ILO doc GB.282/14/3 (14 November 2001).

86 Id, para 58.

87 ILO Convention 169, art 6(1)(c).

88 AR Lucas “Canadian participatory rights in mining and energy resource developments: The bridges to empowerment?” in Zillman et al (eds) Human Rights in Natural Resource Development, above at note 38, 305 at 322, reviewing a number of participant funding schemes developed and implemented by Canadian energy and related environmental impact assessment agencies.

89 Ibid.

90 ILO Convention 169, art 6(2).

91 Clavero, B “The indigenous rights of participation and international development agencies” (2005) 22/1Arizona Journal of International and Comparative Law 41 at 46Google Scholar.

92 Ibid.

93 Report of the committee set up to examine the representation by the Confederación Ecuadoriana de Organizaciones Sindicales Libres alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention 1989 (no 169), made under art 24 of the ILO Constitution, particularly para 38: ILO doc GB/282/14/2 (14 November 2001) (Ecuador Report).

94 The bidding process for the project was held on 26 June 1995 and the share agreement between the Ecuadorian government and Arco Oriente, Inc (the corporation executing the project) was signed on 27 April 1998. However, Ecuador ratified the convention on 15 May 1998 and it came into force in Ecuador on 15 May 1999, more than one year after the project was established: id, paras 2, 10 and 23.

95 Id, para 28, noting that some of the facts outlined in the complaint occurred after the convention came into force in Ecuador.

96 Id, para 24.

97 Id, para 25.

98 Clavero “The indigenous rights of participation”, above at note 91 at 47.

99 Ghanaian proverb, meaning that the rich man cannot know the poor man's problems unless he “gets off the donkey” and walks on the ground or unless he asks the poor man; see T Dogbe “The one who rides the donkey does not know the ground is hot: CEDEP's involvement in the Ghana PPA”, available at: <http://www.iied.org/pubs/pdfs/G01655.pdf> (last accessed 28 May 2009).

100 ILO Convention 169, art 7(1) (emphasis added).

101 Ibid.

102 Id, art 7(3).

103 Chambers Challenging the Professions, above at note 69 at 10.

104 Aarhus Convention, art 6(7).

105 Id, art 6(3).

106 Id, art 6(8).

107 Id, art 6(9).

108 Id, art 6(1)(a).

109 Ecuador Report, above at note 93, paras 13–15.

110 Ibid.

111 Id, para 44.

112 Ibid.

113 Id, para 45(1)–(2).

114 It is for this reason that one finds in the literature “an amalgam of vague formulations and selective perceptions. Statements about the lack of an effective definition of community have appeared so frequently in the literature that it is clear we need to ask not only why has the term proved so problematic, but why it has maintained its popularity in the face of its acknowledged shortcomings”: Bryson, L and Mowbray, M “Community: The spray-on solution” (1981) 16/4Australian Journal of Social Issues 255 at 256Google Scholar. In 1955, Hillery found in the literature 94 definitions of community and stated that the “94 definitions … [were] not all of the definitions of the community”: Hillery, G Jr “Definitions of community: Areas of agreement” (1955) 20/2Rural Sociology 111 at 112Google Scholar.

115 UNDP Niger Delta Human Development Report, above at note 1 at 21.

116 Ibid.

117 Id at 113.

118 Id at 15.

119 Ibid.

120 Kellert, SR, Mehta, JI, Ebbin, SA and Lichtenfeld, LL “Community natural resource management: Promise, rhetoric, and reality” (2000) 13/8Society and Natural Resources 705 at 711–12Google Scholar.

121 L Amis, P Brew and C Ersmarker “Human rights: It is your business: The case for corporate engagement” (2005, International Business Leaders Forum) at 9, available at: <http://www.iblf.org/~/media/Files/Resources/Publications/Publicationsv1/HumanRights_ItIsYourBusiness_2005.ashx> (last accessed 28 May 2008).

122 J Switzer “Armed conflict and natural resources: The case of the minerals sector” (discussion paper for the mining, minerals and sustainable development project of the International Institute for Environment and Development/World Business Council for Sustainable Development, July 2001) at 11, available at: <http://www.iied.org/mmsd_pdfs/jason_switzer.pdf> (last accessed 28 May 2008).

123 There was recently a critical case in the Etekwuru community of Egbema, Imo State, an oil community known for its unparalleled peace in the Niger Delta, where negotiations for a memorandum of understanding with Nigeria Agip Oil Company (Agip) had broken down because, mid-way through the negotiations, Agip sought unilaterally to reverse decisions already reached. The community felt that Agip was taking it for granted. It threatened to disrupt Agip's oil operations in the area if Agip did not change its position.

124 Switzer “Armed conflict and natural resources”, above at note 122 at 19.

125 Ross “Mineral wealth and equitable development”, above at note 82 at 28–29.

126 Id at 26.

127 Ibid. In Nigeria, it is arguably due to the government's self-consciousness about its lack of credibility among the oil bearing region that it is frantically seeking international support in its effort to mollify the people of the region.

128 The Commission on Global Governance Our Global Neighbourhood: The Report of the Commission on Global Governance (1995, Oxford University Press) at 22.

129 Tanner, F “Conflict prevention and conflict resolution: Limits of unilateralism” (2000) 839 International Review of the Red Cross 541 at 553CrossRefGoogle Scholar, available at: <http://www.icrc.org/Web/Eng/siteeng0.nsf/html/57JQQ2> (last accessed 28 May 2008).

130 Ross “Mineral wealth and equitable development”, above at note 82 at 27.

131 Agrawal, A and Gibson, CC “Enchantment and disenchantment: The role of community in natural resource conservation” (1999) 27/4World Development 629 at 636CrossRefGoogle Scholar.

132 White, SC “Depoliticising development: The uses and abuses of participation” (1996) 6/1Development in Practice 6 at 15CrossRefGoogle Scholar.

133 Plummer, R and Fitzgibbon, J “Co-management of natural resources: A proposed framework” (2004) 33/6Environmental Management 876 at 881CrossRefGoogle ScholarPubMed.

134 Kellert et al “Community natural resource management”, above at note 120 at 710.