10. Environmental Impacts and Risks of Extractive Operations

Mapani and Kribek (2012).

Ibid.

Ibid.

See Ogola et al. (2002), p. 141; also Cukrowska et al. (2012), pp. 15–18.

Nkulu et al. (2012), pp. 13–14.

Ocholla (2013), p. 213.

Nkulu et al. (2012), pp. 13–14.

Olawuyi (2015a, b).

United Nations Environment Programme (2011), p. 12.

See generally Oluduro (2014), p. 165 (providing an account of the nature and scope of the problems discussed); see also Human Rights Watch (1999a, b), p. 47.

See The 2002 International Law Association (2002), which strongly reaffirms and concretizes the duties of states to incorporate sustainability into the management plans for natural resources and associated activities. It notes that “sustainable development is now widely accepted as a global objective and that the concept has been amply recognized in various international and national legal instruments, including treaty law and jurisprudence at international and national level”; also Schrijver (2017) (providing an overview of the ways that sustainable development principles have been incorporated into and operationalized by international treaty regimes and tribunals); French (2017) (highlighting how sustainable development has been incorporated into the juridical activities of international bodies convened under the auspices of UN associated and influenced treaty regimes); [international treaty law on sustainable development]; also UN, The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding Among UN Agencies.

Mining Working Group at the United Nations (2014); Macias (2010), pp. 10–12.

See Olawuyi (2016a, b).

See Saether and Aguilera (2008).

The Brundtland Report (1987).

For a detailed review of these efforts, see Olawuyi (2015a, b).

Quoted in Burges Salmon (2014), pp. 1–2.

United States Environmental Protection Agency (2016).

See World Health Organization (2016), pp. 23–25.

Olawuyi (2015a, b).

National Environmental Standards Regulatory and Enforcement Agency (Establishment) Act of 2007, Laws of the Federation of Nigeria 2004, c N164.

See Olawuyi (2015a, b), pp. 8–10.

Donnelly and Bishop (2007); see also Eckersley (1992), p. 58; Redgwell (1996), pp. 86–87.

See Elder (1984), p. 285; Anderson (1996), pp. 10–11; Feinberg (1974). Feinberg adds that plants and animals cannot hold rights because they are incapable of claiming such rights on their own, He noted that: “…Animals are incapable of claiming rights on their own, they cannot make motion to Courts on their own to have their claims recognized or enforced; they cannot initiate on their own any kind of legal proceedings; nor are they capable of even understanding when their rights are being violated, of distinguishing harm from injury and responding with indignation and an outraged sense of justice instead of mere anger or fear”.

See Bodansky (2010), pp. 9–11.

United States Environmental Protection Agency (2016).

For detailed examination of these debates, see Olawuyi (2015a, b), pp. 8–20.

Para 1, The Stockholm Declaration on the Human Environment, UN Doc A/CONF48/14/ Rev.1, (1972). [The Stockholm Declaration].

Section 37 of the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act 2007 Laws of the Federation of Nigeria 2004, c N164.

Department of Environment, South Africa, Effects of Mining on the Environment and Human Health.

Gardner and Sainato (2007).

Department of Environment, South Africa, Effects of Mining on the Environment and Human Health.

The name “Sahel” is derived from the Arabic word sahil, which means “border of the desert”. The Sahel region covers nine countries Mauritania, Senegal, The Gambia, Guinea-Bissau, Mali, Burkina Faso, Niger, Chad and Cape Verde. Water is a scarce resource in all Sahel countries. Besides erratic rainfall patterns, poor soils and unfavourable socio- economic conditions are already key constraints to agricultural development in Sahelian states. See Sissoko et al. (2010) and Bailey (1979).

Olawuyi (2015a, b), pp. 228–285.

See Ocholla (2013), p. 213.

Studies have shown that trace metals remain in the soil for a long time ranging from hundreds to thousands of years. (Pb and Cr for example may remain for several thousand years). See Johnston et al. (2008), pp. 5–20.

Paul and Campbell (2011); also Schuler et al. (2011).

According to the Chinese Society of Rare Earths, every ton of REE produced generates 8.5 kg of fluorine and 13 kg of flue dust, waste materials which contain the heavy metals. Schuler et al. (2011), ibid.

See Earth and Mining Watch Canada (2012), pp. 6–10; also US Department of Interior (1993); Apte and Kwong (2003), pp. 2–20; Findikakis and Law (1998).

Earth and Mining Watch Canada (2012).

Ibid.

Sydney Morning Herald (2002); also McKinnon (2002).

Earth and Mining Watch Canada (2012).

Earth and Mining Watch Canada (2012).

Ibid, 1.

See United Nations (2010), Water and Sanitation Fact Sheet for Nigeria.

Akcil and Koldas (2006); also Davies (2012), pp. 17–18.

See Ossai et al. (1999), pp. 83–86.

Johnston et al. (2008), pp. 2–5.

Department of Environment, South Africa, Acid Mine Drainage (AMD) in South Africa. [AMD].

Ibid.

Ibid.

In average, AMD in South Africa has increased by nearly 40% between 1956 and 2017, ibid.

Sensogut (2007).

MINEO Consortium (2000).

See the Nigerian oil pollution case of Nwadiaro v Shell Petroleum Development Company, Nigeria Ltd (1990) 5 N.W.L.R. (part 150) 322; Shell Petroleum Development Company, Nigeria ltd v Farah (1995) 3 N.W.L.R. (part 382) 148; Shell Petroleum Development Company Nigeria Ltd v Ambah (1991) 3 N.W.L.R. (part 593) 1; Shell Petroleum Development company, Nigeria Ltd v Isaiah (2001) 11 n.w.l.r. (part 723) 168; Elf Nigeria Ltd v Opere Sillo (1994) 6 N.W.L.R. (part 350) 258; Shell Petroleum Development Company, Nigeria Ltd v Tiebo vii & Others (2005) 3-4 s.c.

Olawuyi (2015a, b), pp. 177–179.

See Olawuyi (2012); Emeseh (2006), p. 595.

Olawuyi (2015a, b); also see Ojukwu-Ogba (2009), p. 137.

Vidal (2011).

United Nations Environment Programme (2011).

Former U.S President Obama declared it as the ‘worst environmental disaster America has ever faced’. See Nat’l Comm’n On The Bp Deepwater Horizon Oil Spill & Offshore Drilling, Report To The President, Deepwater: The Gulf Oil Disaster And The Future Of Offshore Drilling, vi (2011).

Greenpeace International (1994).

Quoted in Greenpeace International, ibid; see also Dappa-Biriye et al. (1992), p. 52.

See Olawuyi (2015a, b), pp. 179–185.

See Article 23 of the Universal Declaration of Human Rights (UDHR) and Article 6 of the International Covenant of Economic and Social Rights (ICESR).

Ibid.

Yanomami Case, Rep. No. 12/85, Case 7615 (Brazil), (1985).

Case of the Mayan Indigenous Communities from the Toledo District, Belize Report No. 40/04, Case 12.053, Merits, Mayan Indigenous Communities from the Toledo District, Belize, 12 Oct. 2004.

See for example, section 43 of the1999 Constitution of the Federal Republic of Nigeria which recognizes the right of every citizen of Nigeria to acquire and own immovable property anywhere in Nigeria. Section 44 provides that no moveable property or any interest in an immovable property shall be taken possession of compulsorily in any part of Nigeria without just compensation’.

See Article 17 ‘Everyone has the right to own property alone as well as in association with others’ 17 (2) No one shall be arbitrarily deprived of his property. See UDHR, adopted 10 Dec.1948, G.A Res.217A9 (III), 3 UN GAOR, UN Doc.(1948).

The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws. Charter on Human and Peoples Right, adopted 27 June 1981, entered into force 21 Oct. 1986, O.A.U Doc. CAB/LEG/67/3 Rev. 5.

(2001) AHRLR 60 (ACHPR 2001). Communication 155/96.

See Environmental Rights Action (2005).

Olawuyi (2015a, b).

See Jonah Gbemre v. Shell Petroleum Development Company Nigeria Ltd and Others. No. FHC/B/CS/53/05, (Nov. 14, 2005) Federal High Court of Nigeria.

Article 12 of the ICESCR.

See UNDP (2006), p. 17, see also Human Rights Watch (1999a, b) Chapter VI.

Nowak (2000), p. 75.

See Nwilo and Badejo (2006).

UNCLOS Convention, United Nations Convention on the Law of the Sea, 1982, 21 ILM (1982), 1261 (adopted on 10 December 1982, and entered into force on November 16 1994).

Stockholm Declaration.

See for example Trail Smelter Arbitration (U.S.A. v. Canada), 1938-1941, 9 I.L.R. 315; LacLanoux Arbitration (France v. Spain), 1957, 24 I.L.R. 101; Case Concerning the Gabcikovo- Nagymaros Project (Hungry v Slovak Republic), 32 ILM (1993) 1293.

United Nations Environment Programme (2011).

European Environmental Bureau (1997), Chapter 1.

Ibid.

Tiratsoo (1972), p. 17.

See Olawuyi (2015a, b), pp. 185–189.

It is estimated that the volume of gas flared in Nigeria accounts for over 75% of the gas flared in Africa. See generally, Aghalino (2009), p. 220.

The five countries with the highest flaring amounts in billion cubic meters (bcm) are Russia (35), Nigeria (15), Iran (10), Iraq (10) and USA (5). See Elvidge et al. (2016), also World Bank (2009).

See Social Development Integrated Centre (Social Action) (2009). See also Eboh (2014).

For a detailed discussion of the effects of gas flaring on lives, health and the environment of local communities in Nigeria’s Niger Delta, as well as its contribution to climate change, see Olawuyi (2015a, b), pp. 186–190.

According to Aniete Aniete, a fisherman in the Niger Delta. “Because of the flares, it is so hot, it is smoky, the air is thick and it is constantly daytime here…Our rivers are black and the [acid] rain eats our houses. Our bodies are covered in oil. You feel that if you live to old age here, it is a miracle.” See Monica (2012). See also Ajugwo (2013), pp. 6–8.

Climate Justice Programme (2005).

Ayoade (2002), p. 2.

Ibid, 6–7, also Gorman and Neilson (1997).

Ritter et al. (1995).

Ritter et al. (1995).

Patin (1999), p. 34.

Macdonald (1994), p. 94.

Ibid.

See UKOOA (1995).

For more on these conventions, see generally, the United Nations Diplomatic Conferences—United Nations Conference on The Law of The Sea 1958, UN Treaty.

Ibid.

Stockholm Declaration.

See the United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, UN, Oceans and Law of the Sea, preamble.

See the preamble, ibid.

art 194, ibid. 14 art 196, ibid. 15 ibid.

See the United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, arts 197–199, 204.

Arts 215–222.

See the United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, art 198.

The International Convention for the Prevention of Pollution from Ships 1973/78, 2 November 1973, 1340 UNTS 184.

International Convention for the Prevention of the Pollution of the Sea by Oil, 12 May 1954, 327 UNTS 3.

See generally, International Maritime Organization, International Convention for the Pre-vention of Pollution from Ships 1973/78, 2 November 1973, 1340 UNTS.

See the preamble, ibid.

See the International Convention for the Prevention of Pollution from Ships 1973/78, 2 November 1973, 1340 UNTS 184.

See the International Convention for the Prevention of Pollution from Ships 1973/78, 2 November 1973, 1340 UNTS 184, art 5.

See the Protocol on Provisions Concerning Reports on Incidents Involving Harmful Substances to the International Convention for the Prevention of Pollution from Ships 1973/78, 2 November 1973, 1340 UNTS 184, arts 2–4.

Arbitration Protocol to the International Convention for the Prevention of Pollution from Ships 1973/78, 2 November 1973, 1340 UNTS 184, arts 1–10.

The Convention on Long-range Transboundary Air Pollution, 13 November 1979, 1302 UNTS 217, UNECE.

For a list of countries that are members of the UNECE, see UNECE (2018a).

Kamminga and Zia-Zarifi (2000); also United Nations Guiding Principles (2011).

For more on these protocols, see generally, UNECE (2018b).

The United States Environmental Protection Agency has categorized dioxin as a “likely human carcinogen” causing cancer. See United States Environmental Protection Agency.

See the United Nations Environment Programme-Chemicals: Persistent Organic Pollutants.

See arts 3, 5 and 6, ibid.

Art 7, ibid.

Annex A, B and C, ibid.

See generally, arts 8, 9, 19, 11, 12, 13 and 15.

There is now sufficient scientific consensus on the fact that climate change is real and that anthropogenic GHG emissions are a cause. See Intergovernmental Panel on Climate Change (IPCC), Climate Change 2007, the Fourth Assessment Report (AR4), in which the IPCC stated that the likelihood was 90–99% that emissions of heat- trapping greenhouse gases such as carbon dioxide were the dominant cause of the observed warming of the last 50 years. According to the Panel, it is ‘very likely’ that human activity is the main driver of the rise in temperatures since 1950. See also Stevens (2007) and Rosenthal and Revkin (2007). Also see Tickell (1968). See also The European Renewable Energy Council (2007).

See Intergovernmental Panel on Climate Change (2007).

Elvidge et al. (2016), Knippertz et al. (2015), also Social Development Integrated Centre (Social Action) (2009).

UNFCCC, Outcome of the Durban Climate Change Conference (2011).

See Doha Amendments to the Kyoto Protocol (Adopted 8 December 2012) C.N.718.2012.TREATIES-XXVII.7.c. Pursuant to Article 20, paragraph 4, and Article 21, paragraph 7 of the Kyoto Protocol, the Amendment shall enter into force for those Parties having accepted it, on the ninetieth day after the date of receipt by the Depositary of an instrument of acceptance by at least three fourths of the Parties to the Kyoto Protocol.

Conference of the Parties to the United Nations Framework Convention on Climate Change, Paris Agreement (2015).

Article 2, ibid.

See the West and Central Africa Regional Framework Agreement on Air Pollution (2009).

Similar agreements aimed at increasing air quality have been put in place in other African sub-regions. See Eastern Africa Regional Framework Agreement on Air Pollution (Nairobi Agreement); Southern Africa Regional Framework Agreement on Air Pollution (Lusaka Agreement) and the North African Framework Agreement on Air Pollution.

Art 1, ibid.

Art 4, ibid.

Art 7, ibid.

Art 8, ibid.

Art 9, ibid.

See Boyd (2012), p. 2.

African Charter of Human and Peoples’ Rights, 27 June 1981, Organization of African Unity Doc CAB/LEG/67/3 Rev 5, 21 ILM 58 (providing a “right to a general satisfactory environment favorable to…development”).

In Nigeria for example, the environmental right provision is placed in Chapter II of the Constitution, titled Fundamental Objectives and Directive Principles of State Policy. Section 6(6)(c) of the Constitution however strips all courts in Nigeria of powers to adjudicate on all rights listed in the Fundamental Objectives and Directive Principles of State Policy. It provides that judicial powers vested in Nigerian courts:

shall not…extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution.

This provision removes the rights of the public to enforce constitutional environmental rights in Nigeria. Constitutions of several of the countries referenced above contain similar language that directly declare that environmental right provisions shall not be enforceable (Constitution of the Federation of Nigeria, supra note 63).

For a detailed review of these efforts, see Olawuyi (2015a, b).

See for example ANGOLA’s Framework Environment Law—Law No. 5/98, of 19 June 2015; EGYPT’s Law 4/1994 for the Protection of the Environment; GHANA’s Environmental Protection Agency Act, 1994; ALGERIA’s Law no. 82-10/1982 on Fishing, Law no. 83- 16-17 July 1983 on Water, and Law no. 84 -12/1984 on Forestry Order; KENYA’s Environmental Management and Coordination Act no. 8 of 1999; the NIGERIAN National Environmental Standards and Regulations Enforcement Agency (NESREA) Act of 2007, Laws of the Federation of Nigeria 2004, c N164, s 7; the Niger Delta Development Commission (NDDC) (Establishment etc) (Amendment) Act of 2017, the National Oil Spill Detection and Response Agency (NOSDRA); SOUTH AFRICA’s National Environmental Management Act No. 107 of 1998 National Environmental Management Laws Amendment Act, No. 25 of 2014 and ZIMBABWE’s Environmental Management Act (EMA), Act No.13 of 2002 (Chapter 20:27), revisions under Act No.5 of 2004 (s.23) and Act No. 6 of 2005 (s.28).

Ibid.

Ibid.

s 8 (g)-(k), ibid.

Ss 20, 27(1). ibid.

Ss 21 (1)-(2), 29.

See the preamble, s 1, ibid.

Ibid.

The National Oil Spill Detection and Response Agency (Establishment) Act 2006.

See s 6, ibid.

s 19(3), ibid.

The Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (2002), paras 44–46, 54–59.

Ibid, paras 3.8.8.1 (iii)–(ix), ibid.

See pp. 90–91, ibid.

See Hunter et al. (1987), also UNEP (1987).

Ibid.

See Olawuyi (2015a, b), pp. 262–263.

See Olawuyi (2015a, b), pp. 262–263.

See s 1, ibid.

Ss 2(1)–(3), ibid.

See the Schedule, ibid.

Ibid, s 26.

See generally, DPR (2010).

See DPR (2010).

There is a plenitude of examples across Africa. See for example Kenya’s National Environment Council (NEC) established under the Section 4 (1) of Kenya’s Environmental Management and Coordination Act no. 8 of 1999; also Kenya’s National Environment Management Authority (NEMA) established under the same law. Also South Africa’s Department of Environmental Affairs; the Nigerian National Environmental Standards and Regulations Enforcement Agency (NESREA) established under the NESREA Act (NESREA) Act; the Niger Delta Development Commission (NDDC)of Nigeria established under the NDDC (Establishment etc) (Amendment) Act of 2017, the Energy Commission of Nigeria, the National Oil Spill Detection and Response Agency (NOSDRA), National Water Resources Institute (NWRI) and the Nigerian Tourism Development Corporation (NTDC). Recently the Government of Nigeria established the Hydrocarbon Pollution Restoration Project (HYPREP) to investigate, evaluate and make recommendations on the clean-up of hydrocarbon impacted sites in the Niger Delta region of Nigeria.

For a comprehensive list of all environment ministries in Africa, see The World Bank, Africa Environmental Agencies.

Ibid.

See Ministry of Environment of Nigeria.

Section 3 Environmental Management and Coordination Act (EMCA), 1999.

Egyptian Environmental Affairs Agency.

See Olawuyi (2016a, b).