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PETROLEUM EXPLOITATION AND INDIGENOUS PEOPLES’ (IP) RIGHTS IN NIGERIA: CAN THE INTERNATIONAL LABOUR ORGANISATION (ILO) CONVENTION 169

HELP?

Adebola Ogunlade*

ABSTRACT: Since 1958, when Royal Dutch Shell pioneered commercial petroleum development in Nigeria, there has
been an influx of other multinational oil companies into the country. However, indigenous peoples (IPs) have been at the receiving end of this resource extraction activity as they have been bedraggled with its deleterious effects on their lives, economy, health, environment, culture and future. This menace is accentuated by the fact that the activities are undertaken with total disregard for their inalienable rights and interests as traditional land owners. Over the years, there has emerged, an immense body of local, regional and international legal frameworks that have given considerable attention, directly and sometimes incidentally, to the recognition and protection of indigenous peoples‟ rights globally and in this case, in Nigeria. Howbeit, the International Labour Organisation Convention (ILO) 169 takes the cake in the international recognition and protection of IP rights. Whilst this paper seeks to underscore the potential of the ILO Convention 169 in safeguarding IP rights viz-a-viz petroleum activities (if ratified and domesticated into domestic law in Nigeria), it further pinpoints, by legal and socio-political analysis, some other germane steps that are sine-qua-non, for the protection of IP rights in deed and not merely in dead letter law, in the country.

*

The author is currently completing an LLM Degree in Petroleum Law & Policy at the Centre for Energy, Petroleum, Mineral Law and Policy (CEPMLP), University of Dundee, UK. He is a Legal Counsel at the Nigerian National Petroleum Corporation, Abuja. He was called to the Nigerian Bar in 2004. He has special research interests in oil & gas contracts, taxation and fiscal regimes, climate change and environmental law issues in the natural resources industry. He is an Associate of the Chartered Institute of Arbitrators, UK; a Graduate Member of the Energy Institute, UK and a Student Member of the Institute of Chartered Secretaries and Administrators, London. He is Co-Editor -in-Chief of the CEPMLP Annual Review (CAR) 2009/10. Email: adebolaogunlade@yahoo.com

TABLE OF CONTENTS ABBREVIATIONS ................................................................................................................................. iv

LIST OF FIGURES................................................................................................................................. vi

LIST OF TABLES.................................................................................................................................. vii

1.

INTRODUCTION ............................................................................................................................ 1 1.1 The Paradox of Petroleum Development and the Plight of Indigenous People in Nigeria ...................................................................................................... 1

2.

INDIGENOUS PEOPLES IN PETROLEUM PRODUCING AREAS OF NIGERIA ............ 3 2.1 Definition of Indigenous People .................................................................................................. 3 2.2 Indigenous People Groups affected by Petroleum Activities – The Niger Delta .......................................................................................................................... 5

3.

LEGAL PROTECTION FOR INDIGENOUS PEOPLES IN PETROLEUM PRODUCING AREAS OF NIGERIA ........................................................................................... 7 3.1 Do Nigerian Laws protect Indigenous Peoples‟ Rights? ............................................................. 7 3.2 Local and International Legal Frameworks relating to the Human Rights Concerns of Indigenous Peoples in the context of Petroleum Exploitation………………………………9 3.2.1 Right to Self Determination ............................................................................................. 10 3.2.2 Right to Land and Natural Resources............................................................................... 10 3.2.3 Right to Environment ....................................................................................................... 11 3.2.4 Access to Justice ............................................................................................................... 13 3.2.5 Right to Non-Discrimination ............................................................................................ 14 3.2.6 Right to Participation and Consultation ............................................................................ 15 3.2.7 Economic, Social and Cultural Rights .............................................................................. 15

4.

THE ILO CONVENTION 169 TO THE RESCUE?...................................................................16 4.1 Background on the ILO .............................................................................................................. 16 4.2 Background on ILO 169.............................................................................................................17
ii

4.3 IP Rights relating to Petroleum Activities under ILO 169 ......................................................... 18 4.4 Nigeria‟s status in the ILO and regarding ILO 169.................................................................... 21 5. CONCLUSION AND RECOMMENDATIONS..........................................................................21

BIBLIOGRAPHY

iii

ABBREVIATIONS ACHPR AILR AIR AJIL ALJR AMJIL AU CAT CEDAW CERD CRC EIA FEPA GEOIELR ICCPR ICESCR ICJ ILM ILO African Charter on Human and Peoples Rights Australian Indigenous Law Reporter All India Reporter American Journal of International Law Australian Law Journal Reports American Journal of International Law African Union Convention against Torture and other Cruel or Degrading Treatment or Punishment Convention on Elimination of All Forms of Discrimination against Women International Convention on the Elimination of All Forms of Racial Discrimination Child Rights Convention Environmental Impact Assessment Federal Environmental Protection Agency Georgetown International Environmental Law Review International Covenant on Civil and Political Rights International Covenant on Economic. Social and Cultural Rights International Court of Justice International Legal Materials International Labour Organisation iv .

IPs JENRL LFN MOSOP NCLR NDDC NESREA NHRC NSCC NWLR Indigenous Peoples Journal of Energy & Natural Resources Law Laws of the Federation of Nigeria Movement for the Survival of Ogoni People Nigerian Commercial Law Reports Niger Delta Development Commission National Environmental Standards and Regulations Enforcement Agency National Human Rights Commission Nigerian Supreme Court Cases Nigerian Weekly Law Reports OMPADEC Oil Mineral Producing Areas Development Commission SC SCNJ TNCs UDHR UN UNEP UNTS UNWGIP WCIP Supreme Court Supreme Court of Nigeria Judgments Transnational Corporations Universal Declaration of Human Rights United Nations United Nations Environmental Programme United Nations Treaty Series United Nations Working Group on Indigenous Peoples World Council of Indigenous Peoples v .

LIST OF FIGURES Figure 1 Peoples and Cultures of the Niger Delta Region vi .

LIST OF TABLES Table 1 Relevant Human Rights Instruments as ratified by Nigeria vii .

Until very recently (owing to the crescendo of IP militia activities). Mark (1993) 7 NWLR (Pt. drilling wastes dumping from exploration drilling activities damages land and kills fishes and other living organisms in the water. 2009. it was reported that 56.com/real-news/sr-headlines/6244-exxonmobil-oil-spill-in-niger-delta-exposes-nigerians-topoisoned-fish. 2010 at http://www.4km2 of mangrove forest had been destroyed by Shell in Rivers State of Nigeria during seismic operations as at 1995. New York. Farrah (1995) 3 NWLR (Pt. 1 p. that human rights should be protected by the rule of law‟1. See World Bank. Van Dessel. Shell-BP (1975) 9-11 SC 155. noise pollution. At exploration. 2010 and May 1. Usoro (1960) SCNLR 121. 49 and Vol.html (last visited on 20 July. pipeline leakages. the Niger Delta. 1948 UNGA Res 217 A (III). Table A. 1995). These activities operate within the domain of traditional communities. Hence. 4 Recently. 382) 148. 3 See Umudje & Another. it was reported that coastal communities near the Qua Iboe Oil Export Terminal operated by ExxonMobil experienced spill incidents recurrently on December 4. 1 . operational and accidental spills4 from well blow-outs. gas flaring and 1 Preamble to the Universal Declaration of Human Rights. 1995 at 15. See Sahara Reporters. 12 at 95.1. 2010). ExxonMobil Oil Spill in Niger Delta exposes Nigerians to Poisoned Fish. Nigeria‟s petroleum exploitation venture has been tainted with sad tales of human rights violations. its effects rub off on the communities. v. See also Shell-BP V. the tempo of petroleum investments in Nigeria has witnessed remarkable increase. See also Shell v. threat to marine life. through development or negatively. 2010. 2 In a Shell Internal Position Paper. 9 June. At the crux of these human rights violations is the degrading treatment meted on IPs in Nigeria‟s oil producing region. forests are destroyed during seismic operations leading to deforestation. This is traceable to the increasing discovery of petroleum resources in terrains which have hitherto been unexplored due to non-discovery or technological limitations. A World Bank Report stated that about 2. „The Environmental Situation in the Niger Delta‟. either positively. On the negative front. Seismograph Service v. to rebellion against oppression. Internal Position Paper. Vol. II. if man is not to be compelled to have recourse. as a last resort. air pollution.300m 3 of oil in about 300 oil spill incidents were recorded in Nigeria annually between 1991 and 1993 in Rivers and Delta States. UN Doc A/810 71 (1948).saharareporters. See J. March 24. erosion and loss of vegetation and biodiversity2. 3 At the production phase.P.0 INTRODUCTION THE PARADOX OF PETROLEUM DEVELOPMENT AND THE PLIGHT OF IPs IN NIGERIA „It is essential. In addition. Defining an Environmental Development Strategy for the Niger Delta (Washington DC. 10 December. through human devastation and environmental degradation. 304) 203. February.

stm (last visited on 20 July. 2010).venting5 result in harmful consequences on the people‟s health.com/stories/201005270478. See generally.int/library/documents/2005/amnestynga-03nov. The Oron Bill of Rights. The Ogoni Crisis. This is followed by a dissection of „relevant‟ existing transnational legal frameworks that guarantee IP rights in relation to oil exploitation. nay complicity in IP rights violations. Greenlanders. The Ogoni Bill of Rights. Against the background of the 5 Inspite of the New Gas Masterplan framework and other anti-flaring regulations. recently Amnesty and Post-Amnesty plans were established by the Nigerian Government for repentant militants who are willing to be rehabilitated.co. See Andrew Walker. losing about $2. June 1996. Police and other security apparatus of the state to intimidate local peoples through indiscriminate arrests. Rivers State in October 1990.reliefweb.400 people. almost making the operating environment uninhabitable for the oil companies. 26 May. the repeated use of the Nigerian Military. 2010 at http://allafrica. The paper opens with a panoramic overview of who the IPs in Nigeria‟s petroleum producing areas are. institutional and judicial support for the IP rights.pdf (last visited on 20 July.html (last visited on 20 July. 2 . see J. Petroleum development in Nigeria has exacerbated the very miserable socio. contributing 12. Nigeria still flares 40% of its gas as it is produced. 8 This includes the Niger Delta People‟s Volunteer Force.8 This paper examines the place of the ILO 169 Convention as a panacea to IP rights violations in the midst of oil exploitation. However. 6 This is evident in the apathy towards adequate and effective legislative. Claiming rights and Resources: Injustice. Khan. The Massacre of an Oil Producing Community: The Umuechem Tragedy Revisited (Port Harcourt: Institute of Human Rights and Humanitarian Law. an army of violent agitators who have thrown peaceful diplomacy to the winds and embraced outright violence and wanton kidnappings thus. torture.6 The foregoing has provoked a plethora of indigenous intellectual efforts via IP declarations aimed at drawing the attention of the international community to their plights7 and lately. the brutal murder of Ogoni Leaders and the factionalisation of the Movement for the Survival of Ogoni People (MOSOP) till date. The Ikwerre Declaration amongst others. BBC News.economic lives of its peoples and fuelled intra/inter community conflicts between the people and their leaders over money sharing. See Osa Okhomina. 1994). Icelanders. For instance. Nigeria: The Political Economy of Oil (Oxford: Oxford University Press. 2010). 2005 at http://www. 7 This includes the Egi People‟s Declaration. rape and extra-judicial killings. Amnesty International Report. Nigeria: FG to Flag-off Post-Amnesty Plan. 2010). Oil and Violence in Nigeria Amnesty International Report: Ten years on: Injustice and violence haunt the oil Delta. This is further worsened by Government‟s acquiescence and indifference. see A. the police killed about 80 people and destroyed about 500 houses. near PH. Harpers Magazine. Niger Delta Vigilante Force. in the Umuechem Community protest against Shell facility in Umuechem. The Kaiama Declaration.uk/1/hi/world/africa/7820384. Hammer. The Army Massacre of 20 November. an Ijaw town in Bayelsa State resulting in the death of more than 2. infrastructural development and socio-economic livelihood.bbc. Nigeria Crude: A Hanged Man and an Oil-fouled Landscape‟. Movement for the Emancipation of Niger Delta. 1999 in Odi. All Africa News. environment. 1994). KKK amongst others. Nsirimuvu.5% of the world‟s gas flaring and ranking as the 2 nd worst gas flaring nation in the world next to Russia.A. 2009 at http://news. Niger Delta Joint Revolutionary Council.5b annually. Nigerian Gas Profits „up in smoke‟ 13 January. See also S. thus systematically undermining the dignity of traditional institutions.

and after petroleum activities have been undertaken in their territories.J. In concluding. having historical continuity with pre-invasion and pre-colonial societies that developed in their territories. J. Martinez Cobo defines indigenous peoples as follows: “Indigenous Communities. consider themselves distinct from other sectors of the society now prevailing in those territories. Peoples and Nations are those which. 1996). The UN Special Rapporteur. 3 . universally accepted definition for „indigenous peoples‟. INDIGENOUS PEOPLES IN PETROLEUM PRODUCING AREAS OF NIGERIA 2.4/SUB. 2. Erica-Irene Daes. the paper posits that in addition to the domestication of ILO 169. “Indigenous Peoples‟ in International Law: A Constructivist Approach to the Asian Controversy”. develop and transmit to future generations their ancestral territories. and their ethnic identity. Mrs. there is a consensus that the concept is attachable to a „special category of peoples‟ within a polity. They form at present non-dominant sectors of society and are determined to preserve.2/AC/1996/2. UN Doc. 92 AJIL 412 (1998).1 DEFINITION OF INDIGENOUS PEOPLES While there is no sacrosanct. Working Paper by the Chairperson-Rapporteur. Concept of Indigenous Peoples. “Standard-Setting Activities: Evolution of Standards concerning the Rights of Indigenous Peoples”. 9 According to James Anaya10 indigenous peoples are „the living descendants of pre-invasion inhabitants of lands now dominated by others‟. 10 S. or part of them.apparent inadequacy of existing transnational instruments (as ratified by Nigeria). UNWGIP. This definition presumes that particular lands were inhabited by a distinct people before they were conquered and dominated by „new‟ settlers but descendants of these original inhabitants continue to maintain themselves as distinct in tradition and culture based on their past heritage. the paper evaluates the ILO 169 and the need for its ratification and domestication into Nigerian law. E/CN. Indigenous Peoples in International Law (New York: Oxford University Press. see B. several other measures need to be taken to assure IPs that their rights will be guaranteed in the course of. Kingsbury. Anaya. as 9 For a detailed discourse on the multifarious definitions of the „indigenous peoples‟ concept.

See also Birgitte Feiring. even before foreign conquest? Secondly. University of Dundee.. 13 Several international law experts have written on the subject of indigenous peoples. Unpublished PhD Thesis (CEPMLP.C. International Labour Standards Department. 16 Nasirdeen Usman The Rights of Indigenous Peoples and Mineral Resource Development: Global Trends and the Nigerian Question. 2003) at 21. 2010). entered into force on 2 June. it may not exhaustively cover the circumstances of some others especially in Africa 15 and Asia who might have been marginalized by the contemporary push for development. in accordance with their own cultural patterns. 13. is it population. ed. Aiston. 14 This includes the Aboriginal People of Australia and Canada.11 The posers to the above are the twin issues of „preoccupation‟ and „non-dominance‟: How do we exactly determine who. See also B.ilo. A World Council of Indigenous Peoples Concept Paper. 4 . Martinez Cobo. L. 2010).W. 18 See Art. and therefore require protection by some form of affirmative action. UK. The Australian Year Book on International Law Vol. „The Spanish Origin of Indian Rights in the Law of United States‟ 31 Geo. 17 International Labour Organisation.13 Suffice to say that while the above definitions would neatly fit into many IP categories globally.12 However. Marks.cwis. economic or political? The World Council of Indigenous Peoples (WCIP) in its draft Covenant attempted to douse the latter contention by using the criterion of „lack of political control‟. Indigenous Peoples in International Law: Significance of Francisco de Vitoria and Bartolome de Las Casas in D. 1 (1942). 3 Canadian Human Rights Yearbook 3 (1983). See G.org/fwdp/International/intconv. Indigenous Peoples of the World: An Introduction to Their Past. See also F.. Present and Future (Saskatchewan: Purich Publishing. 2009 at 9 at http://www. Anaya.pdf (last visited on 20 July. Supra.txt (last visited on 20 July. 1959. D. 1957. Francisco de Vitoria and Bartolome de Las Casas on the use of international law for the protection of American Indians.J. „The Re-emergence of Indigenous Questions in International Law‟. in part. note 10. 1993). „Indigenous and Tribal Peoples: A Guide to ILO Convention No. S.18 11 J. this does not completely stop the other criteria from resonating when IP issues are in contention.the basis of their continued existence as peoples. 14. Cohen. 1992 which espoused the intellectual inputs of 16 th Century Spanish jurists. Goehring.4/Sub2/1986/7Add4. Sanders. social institutions and legal systems”. Convention concerning the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries 328 UNTS 247 (1957) (hereinafter „ILO 107‟) adopted on 26 June. Report of the Special Rapporteur on the Study of the Problem of Discrimination against Indigenous Populations. the conflicts in Warri in the Delta Region of Nigeria between the Itsekiris and the Urhobos who both make aboriginal claims to Warri. 1989 and entered into force on 5 May. Greig and P. 169‟. 15 This perhaps explains.J. the Maoris of New Zealand and the Indians of the United States.org/wcmsp5/groups/public/---ed_norm/--normes/documents/publication/wcms_106474.S. UN Doc. April 1981 at www. Convention concerning Indigenous and Tribal Peoples in Independent Countries 28 ILM 1382 (1989) (hereinafter ILO 169) adopted on 27 June. from time immemorial was the first to inhabit a territory. 1991. 1(1)(a) Ibid. what criteria do we apply to determine non-dominance. 12 The Need for International Convention. International Labour Organisation. E/CN. the Saami of Far North Europe.16 It is to this extent that the ILO added the concept „Tribal Peoples‟ in its Conventions17 to cover a more extensive scenario for local and international protection for these peoples rather than establishing a priority on whose ancestors first arrived in a territory.

petroleum activities are presently been actively undertaken in the Delta area of the South of Nigeria. Ondo (South West Yoruba). Igbos. Hausa. Delta. However. Igbo. Isoko. This includes the Ijaw. Ibibio in the South. Urhobo. Urhobos. the 2nd largest Delta in the world and the largest wetland in Africa. 2010). Ilaje Yorubas. Edo.19 Figure 1 Source: Ekeh Peter P. By political definition. Rivers. Ogonis. the Niger Delta‟s oil accounts for 90% of Nigeria‟s export and about 80% of its national revenue. The Niger Delta comprises several indigenous people groups where petroleum exploitation is being undertaken. Itsekiris. 2010. Ibibios. Today. Edo. 5 .jpg (last visited on 20 July. Edo. Available at http://coral. and the Fulani. Imo (South East Igbo) states. Nupe. Nigeria and Africa: Lingusitic Maps. Bayelsa (South-South). Urhobo Historical Society. Cross Rivers. Kanuri. Tiv in the North of Nigeria to mention a few. USA. It has a population of over 45 million people. the Niger Delta comprises all contiguous oil producing areas of Nigeria which covers parts of Akwa-Ibom.20 19 20 This includes the Ijaws. Yoruba. Ogoni. The Niger Delta is the largest lowland forest and aquatic area in the West African sub-region.2.lili.2 INDIGENOUS PEOPLE GROUPS AFFECTED BY PETROLEUM ACTIVITIES – THE NIGER DELTA Nigeria has over 250 indigenous people groups. Itsekiri. and Abia.uni-bielefeld. Efik.de/langdoc/EGA/Proposals/Ega-proposal2/sv019026. New York.

2006) at 200-201. 24 E.stm (last visited on 20 July. Rivers. atrocious security and human right abuses which culminated in the murder of the MOSOP leader. Ken Saro-Wiwa and eight (8) others.bbc. On June 9. desecration of their spiritual and cultural heritage. 23 They are found in Bayelsa.S. 10 November. under the Alien Torts Statute 1789. Delta. Nigeria. THE OGONI (KEGBOID) PEOPLE They are a population of about 500. 25 Y Banigo The State. 6 . TNCs and Indigenous Peoples: The case of the Ijo-speaking People. 1909.24 Like the Ogonis. Oil was first discovered in Ogoni by Shell in 1958 at a time when Nigeria was under colonialism. Nigeria: Ibadan University Press. Genocide in Nigeria: The Ogoni Tragedy (Saros Publishers. the political and revenue-sharing structure of the Nigerian federation is in their disfavor. 2010). Shell Petroleum Development Company U. with a very high population density. they are into farming and fishing and have been beset with several years of rights violations. See the cases of Wiwa v. Petroleum activities in Ogoniland has resulted in environmental degradation.21 The IPs depend largely on farming and fishing for their means of livelihood. untold economic hardships. Anderson 01 Civ. Akwa-Ibom. They occupy a land area of 404 square miles in the Niger Delta area of Nigeria. App. 1992) See BBC News.Notably.22 In addition. Port Harcourt.co.25 Oil was first discovered in Nigeria in 1956 21 22 See Ken Saro Wiwa. Wiwa v. land and water pollution thus undermining their agricultural prospects and depriving them of their means of sustenance without any alternative remedies. absence of control over their natural resources. 1972) at 17. perhaps due to their obvious minority status in Nigeria‟s federal equation and their vociferous advocacy for IP rights.000 people who have settled in the area well before the 15th century. 2009. THE IJAW (IZON/IJO) PEOPLE The Ijaws are about 15 million people spread over 6 out of the 36 states of Nigeria 23. 1995: Nigeria hangs Human Rights activists. 1995 at http://news. The Ogonis and Ijaws belong to this genre of IPs.) 2009. LEXIS 11873(2d Cir.J. community conflicts. Edo and Ondo States of Nigeria.5 million with the victims‟ families. some IPs have earned a special place in the fight for the safeguard of their rights amidst petroleum exploitation. A series of suits were filed against Shell beginning in 1996. Unpublished PhD Thesis (University of Port Harcourt. Shell agreed to an out-of-court settlement of $15. Royal Dutch Petroleum 96 Civ. Alagoa. A History of the Niger Delta: An Historical Interpretation of Ijo Oral Traditions (Ibadan.uk/onthisday/hi/dates/stories/november/10/newsid_2539000/2539561. 8386 and Wiwa v. They are regarded as the oldest settlers in the Niger Delta of Nigeria.

courtesy of petroleum activities has led to the formation of several pressure groups. the states. Former Vice-President Goodluck Jonathan was appointed President after the demise of the erstwhile President Umaru Yar‟adua on 5 May. subject to the supremacy of the Federal Constitution. It has prevailing. Nigeria is a member of the UN. 2010. Attorney General.by Shell in Oloibiri.0 LEGAL PROTECTION FOR INDIGENOUS PEOPLES IN PETROLEUM PRODUCING AREAS OF NIGERIA 3. 1999 Constitution. overriding force over any other law and other laws derive their validity therefrom. 30 Section 33-44.1 DO NIGERIAN LAWS PROTECT INDIGENOUS PEOPLES’ RIGHTS? In Nigeria.29 Generally. Ijaw National Council and Ijaw Elders Forum. 1999 (the „1999 Constitution‟). 1999 Constitution of the Federal Republic of Nigeria Cap. Okagbue (1994)12 SCNJ 89. the „grundnorm‟ is the Constitution of the Federal Republic of Nigeria. are empowered to make laws for the good governance of their states. 29 See Okonkwo v. 2010.28 Nigeria‟s component units. Customary law is also recognized by Nigerian law provided it is not repugnant to natural justice. an Ijaw was sworn in as Nigeria‟s President on 6 May. C23 LFN 2004 (hereinafter the „1999 Constitution‟). See also Lakanmi v. 7 . after about 50 years of independence and in extraordinary circumstances. chapter 4 of the 1999 Constitution of the Federal Republic of Nigeria guarantees fundamental civil and political rights of its citizens30 whilst also providing for non-justiciable socioeconomic rights in chapter 2. Their struggle against human right abuses. 28 Section 1(3).27 3. an Ijaw territory in Nigeria. equity and good conscience. 26 27 This includes the Ijaw Youth Movement. ILO and AU and signatory to a number of international treaties relating to human rights as it concerns indigenous peoples.26 Notably. Western Nigeria (1970) 6 NSCC 143.

Legislative and Administrative provisions concerning Indigenous Peoples. International Labour Office. 2009. 39/46 signed on 10 December. 1969. 1966. 34 Convention on the Elimination of Racial Discrimination. 1987. ILO. Geneva. 1990. 1989. UNGA Res. entered into force on 26 June. 1981. 1984.Table 1 – RELEVANT HUMAN RIGHTS INSTRUMENTS AS RATIFIED BY NIGERIA31 Instrument Rights (ICCPR)32 International Covenant on Economic. 1249 UNTS 13 signed on 18 December. 660 UNTS 195 signed on 7 March 1966. 2200A (XXI) signed on 16 December. UNGA Res. entered into force on 3 December. 44/25 signed on 20 November. 32 International Covenant on Civil and Political Rights. 37 Convention against Torture GA Res. Social 29/07/1973 and Cultural Rights (ICESCR)33 Convention on the Elimination of All Forms of 16/10/1967 Racial Discrimination (CERD)34 Convention on Elimination of All Forms of 13/06/1985 Discrimination Against Women (CEDAW)35 Convention on the Rights of a Child (CRC)36 Degrading Treatment or Punishment (CAT)37 International Labour Organisation (ILO) 29 17/10/1960 (Forced Labour) ILO 105 (Abolition of Forced Labour) ILO 182 (Worst Forms of Child Labour) ILO 100 (Equal Remuneration) ILO 111 (Discrimination) ILO 138 (Child Labour) Rights38 (ACHPR) 17/10/1960 02/10/2002 08/05/1974 02/10/2002 02/10/2002 19/04/1991 Date of Ratification International Covenant on Civil and Political 29/07/1993 Convention Against Torture and other Cruel or 28/06/2001 African Charter on Human and Peoples‟ 22/06/1983 31 Adapted from ILO/ACHPR. Nigeria: Constitutional. entered into force on 2 September. entered into force on 4 January. 2200A (XXI) signed on 16 December. 8 . 33 International Covenant on Economic. 36 Child Rights Convention GA Res. 35 Convention on Elimination of Discrimination against Women. 1966. Social and Cultural Rights. 1979.

9 . 39 Section 15 & 42. a classic show of reticence viz-a-viz IP rights. Chief Gani Fawehinmi (2000) 6 NWLR 228. As a member of the UN Human Rights Council. 3. existing local environmental & petroleum laws and „ratified‟ international human rights instruments.2 LOCAL AND INTERNATIONAL LEGAL FRAMEWORKS RELATING TO THE HUMAN RIGHTS CONCERNS OF INDIGENOUS PEOPLES IN THE CONTEXT OF PETROLEUM EXPLOITATION The various rights that address IP issues in Nigeria and the relevant legal instruments are discussed extensively hereunder: 38 21 ILM 58 (1982). Adopted on 27 June 1981 and entered into force on 21 October.Nigerian laws tend to be directed at national integration. A9 LFN 2004 pursuant to Section 12(1). 1999 Constitution. Domesticated into Nigerian Law as African Charter of Human and Peoples Rights (Ratification and Enforcement) Act 1983. 42 Art. „The Rights of Peoples in Modern International Law‟. supposedly in a bid to avoid disintegration along ethnic lines.42 As evident from the foregoing. Cap. ACHPR. Nigeria abstained from voting on the UN Declaration on the Rights of Indigenous Peoples. given the rising trends of ethnic militancy in the country.39 This is moreso. 19-24. 1986. Kiwanuka. „The Meaning of „People‟ in the African Charter on Human and Peoples‟ Rights‟ 82 AMJIL 80 (January 1988) p. Brownlie.N. 1992. the recognition of these rights can however be deciphered from the 1999 Constitution. 40 See the lead judgment of Ogundare JSC in the Nigerian Supreme Court case of Sani Abacha and Ors v. 41 For a detailed discourse on the term „peoples‟ see R. save for the ACHPR as domesticated. Ogugu v State (1994) 9 NWLR (Pt 366) 1. whilst there is no specific reference to IP rights under Nigerian law. I. However. thus de-emphasising group rights while emphasizing individual rights and equality of citizenship. the African Charter on Human and Peoples Rights (ACHPR) which pursuant to its domestication has acquired the full force of law.40) contains provisions for safeguard of people rights41 as distinct from individual rights. 83. 1999 Constitution. (higher than municipal law and inferior only to the 1999 Constitution of Nigeria.

Self Determination in International Law (1972) at 11-12. Umozurike. has a great many–seated implication. coupled with postulates of inherent human equality.W. 2.‟ Article 17 of the UN Universal Declaration of Human Rights (UDHR) posits that everyone has the right to own property as well as in association with others and that no one shall be arbitrarily deprived of this right. By virtue of that right they freely determine their political status and freely pursue their economic. 47 See B. See also M.43 The concept of self determination gained prominence in international intellectual discourse around the 1st World War.2.Determination 20 N. See also Western Sahara ICJ case (1975). Article 20(1) ACHPR specifically guarantees the „unquestionable and inalienable right to self determination‟ for all peoples. 3. „Indigenous Peoples and Land Tenure: An Issue of Human Rights and Environmental Protection‟ 9 GEOIELR 173 (1996).355-358 (1988). Article 1(1) of both the ICCPR and ICESCR provide that „All peoples have the right to selfdetermination.2. Furthermore. UN Declaration on the Rights of Indigenous Peoples UNGA 61/295 (2007). 10 .Y.3. Their land is not a commodity which can be acquired. Martinez Cobo opined thus: „…For such peoples.46 There is. 46 Similar provisions are contained in Article 3.44 The 2nd World War brought about the formation of the United Nations (UN) and catalyzed the doctrinal recognition of „self determination‟ in the UN Charter45 and subsequently. The Imagery and Meaning of Self.2 RIGHT TO LAND AND NATURAL RESOURCES In underscoring the symbolic attachment that IPs have to land rights47. 1. social and cultural development‟. 1 UNTS XVI Art. however. „Mineral Development and Indigenous Peoples –The Implications of Mabo Case‟ 11 No. Ganz. Int‟l L. other international covenants.Queensland 66 ALJR 408 (1992). Mabo v. Nicaragua (2002) AILR 12. Hunt. 45 Charter of the United Nations. and their land. There are also supporting case laws on IP rights to property.1 RIGHT TO SELF DETERMINATION The right to self determination is predicated on the philosophical affirmation of the human drive to translate aspiration into reality. para. Umozurike O. no provision in the 1999 Constitution or any other domestic legislation that guarantees this right. The entire relationship between the spiritual life of the indigenous peoples and mother Earth.Pol. the land is not merely a possession and a means of production.48 43 44 See E. but a material element which can be enjoyed freely. J. 3 JENRL 155 (1993). Morgan. M. 48 Mayagna (Sumo) Awas Tingni Community v.U.

land vests in the State and indigenous title to land is usually overruled on the basis of overriding state/public interest. note 50. 130 SC. The Petroleum Production and Distribution (Anti-sabotage) Decree of 1975. note 11. Section 1 of the Nigerian Petroleum Act51 vests „the entire ownership and control of all petroleum in. UN Doc. Nigeria‟ (2005) 2 African Journal of Legal Studies 129-146. Communication 155/96 (2001). 24 ICESCR. 51 P10 LFN 2004. 53 United Nations Conference on the Human Environment. This right shall be exercised in the exclusive interest of the people. Goehring. as in many countries today. See J. one of the most notable cases under the ACHPR. Nwobike „The African Commission on Human and Peoples‟ Rights and the Demystification of Second and Third Generation Rights under the African Charter: SERAC and CESR v. under or upon any lands in the State‟52 3. 1 (1992). 2) (2002) 6 NWLR (Pt.C. Abiyoye v. Supra.3 RIGHT TO ENVIRONMENT Principle 1 of the Stockholm Declaration53 provides that „Man has the fundamental right to freedom. 54 United Nations Conference on Environment and Development. 202 LFN 1990.However. A/CONF. 1 (1972). Principle 13 of Rio54 requires that „States develop national laws regarding liability and damage for victims of environmental damage. Petroleum Decree 51 of 1969. Section 44(1) 1999 Constitution. Social and Economic Rights Action Center (SERAC) and Economic Rights Action Center for Economic and Social Rights (CESR) v. Report of the United Nations Conference on Human Environment. including purposes of petroleum development. equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well-being bearing a solemn responsibility to protect and improve the environment for present and future generations‟. reprinted in 11 ILM (1416) (1972) (hereinafter Stockholm Declaration).49 On IP right to natural resources. Article 21(1) ACHPR provides that all „peoples shall freely dispose of their wealth and natural resources.55 49 Section 1 Land Use Act 1978 Cap. A/Conf. 151/S/REV. 48/14/REV. under Nigerian laws. Yakubu (1991) NWLR Pt.2. Rio Declaration on Environment and Development UN Doc. In no case shall a people be deprived of it. Article 24 of the ACHPR provides that „all peoples shall have the right to a general and satisfactory environment favourable to their development‟.1 and Corr. 55 In SERAC case Supra. See also Attorney General of the Federation v Attorney General of Abia State & Others (No. usually compensated with very paltry sums. 50 See also Art. Generally. the Miscellaneous Offence (Anti-Sabotage) Decree 1984 and the Land Use Decree of 1978 (Section 14) which vest all land and petroleum in the State. 764) 542 S. Nigeria.‟50 Conversely. reprinted in 31 ILM 874 (1992) (hereinafter Rio Declaration). it was held that environmental degradation occasioned by oil exploitation activities of Shell in collusion with the Nigerian Government was a violation of 11 . Petroleum (Drilling and Regulations) Decree of 1969. See also B. 52 See also Petroleum (Drillings and Production) Regulations Act 1969.

p. Kichwa Peoples of the Sarayaku Cmty. C) No. However. Doc. 1 at 387 (2002). 40/04. Pursuant to this legislation. 31.R. of the Toledo Dist. OEA/Ser. Section 9(1)(b)(iii). 350 LFN 1990 P. H. shall take prompt steps to control and if possible end it 59 The vague requirement for the conduct of oil operations in a „proper and workmanlike manner‟ and in accordance with „good oilfield practice‟ only seem to amplify the terseness and inadequacy of the provisions for protection of the peoples‟ environment. Ecuador. (ser. 62/04. v. Union of India [1989] AIR 1989 SC 2039: 1990 Cvi LJ 671. 1 at 727 (2004). air and land. Case 12. 59 Ibid. Report No. 57 Supra. 12766. Mayagna (Sumo) Awas Tingni Cmty.122. the fine for noncompliance was very paltry and the flaring deadline has been shifted at various times to 1 January. a non-justiciable provision of the 1999 Constitution in Section 20 requires that „the State shall protect and improve the environment and safeguard the water. 61 Cap. Ijaw Aborigines of Bayelsa State 2006 (Unreported). 7. 2001).053.R. Union of India [1984] AIR 1984 SC 802. Nigeria‟s principal petroleum legislation makes general provisions on the prevention of pollution of water courses and the atmosphere 57. Regulation 36. 1 at 308 (2004). Nicaragua.L/V/II. 5 rev.. Report No. Case 12. Mahendra Pratap Singh v. Inter-Am C. UNEP Biannual Bulletin of Environmental Law. Regulation 25.R. doc. Case 167/03. 2008 and most recently 31 December. 2012 by a new amendment to the old law with more stringent penalties for default. Ct.L/V/II. C. 58 Cap.At the national level. Bandua Mukti Morcha v.H. the Petroleum Act 1969. Paraguay. 1985.60 The Associated Gas Re-injection Act 197961 which seeks to ban gas flaring initially stated that the deadline for the cessation of gas flaring would be 1 January. Nigeria (1981) 2 NCLR 337.56 Furthermore. 5 rev. 5 rev. Report No.Weeramantry.H. is the right to breath pure air which is part of the 1999 Constitutional right to life.H.. Special Issue No. Belize. former Vice President of ICJ „A right to breath. & Its Members v. this provision has been read complementarily with the civil and political rights. Maya Indigenous Cmty. the Ogoni people‟s environmental and human rights. 60 Ibid. AG of Lagos State. and so by common sense. OEA/Ser. 79 (Aug. by implication. forest and wild life of Nigeria. 1984. 56 According to Judge C. 2/02. State of Orissa [1997] AIR 37. 1 January. v. Inter-Am. 2004.‟ As shown from case law.R. Inter-Am C. Yakye Axa Indigenous Cmty. judges can achieve very environmentally powerful results‟.. See also Shell Petroleum Development Company v. See also Archbishop Okogie v.122 Doc. 2. Paramand Katra v. 31 December.313. A2 LFN 2004. 2001 Inter-Am. 12 . the Petroleum (Drilling and Production) Regulations 196958 also makes snappish provisions to the extent that oil licensees or lessees shall adopt all possible precautions to prevent pollution and where it occurs or has occurred. of the Enxet-Lengua People v.

The Federal Environmental Protection Agency Act 198862 established the Federal Environment Protection Agency (FEPA) to centrally administer a national environmental policy in Nigeria. as stated in the EIA Act. 55. 69 Ibid. See Federal Environmental Protection (Amendment) Decree No. 64 This National Policy was published in 1989 and updated in 1999. EIA Decree. prescribe operational standards aimed at eliminating or minimizing adverse environmental effects of mineral and oil development. E. 70 See SERAC case Supra. ACHPR. Section 1 and 2.2. Section 13 and Schedule. notes 50. 13 .69 However. 65 Ibid.65 However.70 The ACPHR provides for a complaint mechanism for non-state parties71. 1992) Section 5(b). Although the FEPA Act has recently been repealed and replaced with the National Environmental Standards and Regulations Enforcement Agency (NESREA) Act 2007. F10 LFN 2004. FEPA issued more specific sectorial guidelines for the various stages of petroleum development. 59. 68 This includes oil development projects. 68.12 LFN 2004 (hereinafter the „EIA Act‟) 68 Ibid. Vol.72 62 63 Cap.11 and 4. Nigerian National Petroleum Corporation and Ministry of Petroleum Resources. chapter 4. this requirement applies to new projects only. The Environmental Impact Assessment Decree of 199267 requires a mandatory environmental impact assessment of new major projects which may impact the environment. ACHPR. which shall be considered only after local remedies have been exhausted among other conditions. among others. How about past and current projects that predate the Decree with the attendant consequences of environmental degradation? 3. this new enactment still faces similar challenges as the old.14. 71 Art. 79. FEPA is beset with ill-equipped manpower and incessant authority conflicts with other governmental agencies66 due to lack of policy coherence and harmonization with various regulatory authorities in the country. 67 Now Environmental Impact Assessment Act 1998 Cap.64 This policy advocates the adoption of mechanisms to. 72 Art.4 ACCESS TO JUSTICE Article 30 of the ACHPR establishes the African Commission on Human and Peoples Rights to promote and safeguard rights. In 1995. 66 This includes the Department of Petroleum Resources.63 A National Policy was thus formed. including people rights. 23 December. 55-59. 1992 (Supplement to Official Gazette Extraordinary No. 56.

at http://www. Arguably. 14 . there seems to be a glimmer of hope in the light of recent judicial decisions. over the years. 74 Established by the NHRC Act Cap. However. 2010. Section 15 of the 1999 Constitution prohibits discrimination on grounds of place of origin. 75 The NHRC is essentially under the control of the Minister of Justice and Attorney General of the Federation whose office interfered with the Commission‟s activities as evident in the sack of the Commission‟s Executive Secretary. it is a step forward in Nigeria‟s judicial activism in this area. the compensation appears inadequate.5 RIGHT TO NON-DISCRIMINATION Nigeria has ratified the UN Convention on the Elimination of Racial Discrimination (CERD) and the ILO Convention 111 on Discrimination (Employment and Occupation) but they are both yet to be domesticated. the National Human Rights Commission (NHRC)74 has a mandate to promote and protect human rights in Nigeria. N46 LFN 2004. This is aimed at ensuring fair representation of various indigenous groups across organizations.Section 36 of the 1999 Constitution guarantees the right to fair hearing. this provision does not cover private sector employment. lack of independence. 76 See A.2. IPs have always complained of discrimination in employment. „Towards a culture of peace in the Niger Delta‟. a Federal High Court ordered Shell to pay N15. However. Bukhari Bello due to his anti-partisan ideological stance. Section 46 provides that Federal and States‟ High courts shall provide redress for human rights violations. Section 14 of the 1999 Constitution advocates the federal character principle for appointment into government agencies. a category which the oil multinationals belong. religion.4 billion ($100. 73 On 4th July. however. status and ethnic affiliation. corruption and inadequate compensation for IP victims.75 The NHRC Act defines vulnerable groups but fails to recognize IPs as vulnerable groups. However. sex.waado.html (last visited on 20 July. 3.73 In addition. especially during military rule. Unlike its Indian counterparts.76 Suffice to add that these provisions of the 1999 Constitution are non-justiciable. Furthermore. Onduku. 2010).org/nigerdelta/essays/LastingPeace.6 million) as special and punitive damages in favour of Ejama-Ebubu community in Tai Eleme Local Government Area of Rivers State over a 1970 oil spill. However. the Nigerian justice system has been bedraggled with bureaucratic delays. its lack of independence and financial autonomy has undermined it effectiveness.

social and cultural rights. 3-15. EIA Decree. Chapter 2 of the 1999 Constitution profiles these rights. 82 Right to Adequate standard of living and health – Art. 15 ICESR. 81 Supra. Article 27 of the ICCPR provides for the protection of the rights of minorities to enjoy their own culture. consultation and the right of expression in governance and development is recognized under the 1999 Constitution77 and the EIA Act.78 However. 79 The passage of the Petroleum Industry Bill and Freedom of Information Bill both pending before the National Assembly may provide some needed panacea in this respect.3. 1999 Constitution. SOCIAL AND CULTURAL RIGHTS Principle 1 of the Rio Declaration provides that „human beings are the centre of concerns for sustainable development. Right to culture – Art. prior and informed consent of IPs. hitherto petroleum activities have been shrouded in secrecy with little or no access to industry information79 and a lack of clear. 22 ICCPR. although they are non-justiciable. in reality.7 OTHER ECONOMIC. 27 UDHR. 6 & 7 ICESR. Section 2 & 62. 25 UDHR. measurable process of free. Art. 3. 1999 Constitution. note 50.2. 14). 80 Art. They are entitled to a healthy and productive life in harmony with nature. Art. profess and practice their own religion and use their own language. the people‟s right to property (Art. Apart from the protection of civil and political rights under the ACHPR.83 77 78 Section 14(2)(c). environment (Art. 11 & 12 ICESR. A litany of other economic. This is further amplified in Articles 21 of the UDHR and Article 25 of the ICCPR. 4.80 the ACHPR also provides for economic.6 RIGHT TO PARTICIPATION AND CONSULTATION Principles 13 & 22 of Rio Declaration recognize the need for access to information and right to participation in decision making. 15 . 16). Art. In the SERAC case81. 16 and 22) had been infringed. 24) and right to food (Art.2. ACHPR. Art.82 At the national front. the African Commission on Human and Peoples Rights submitted that by environmental pollution. 23 & 24 UDHR. In Nigeria. 39 and 40. 14(4). people participation. 83 Section 13-24. health (Art. Right to work – Art. social and cultural rights is contained in other international instruments ratified by Nigeria.

87 84 85 Niger Delta Development Commission Act 2002 Cap. comprising governments. the need to improve the quality of peoples‟ lives globally propelled international law. The ILO is a UN specialized agency involved in standards-setting through the adoption of Conventions and recommendations and providing assistance to governments and others in putting them into practice.0 THE ILO CONVENTION 169 TO THE RESCUE? A discourse on the legal framework for the protection of IP rights in petroleum exploitation would not be complete without an analysis of the IP protection provided for by the ILO. 23 of 1992. N86 LFN 2004. 86 Birgitte Feiring Supra. who all have formal roles to play in the decision-making and procedures of the institution. However. IPs as such do not have a formal position within the ILO tripartite structure. including in the International Labour Conferences and the ILO Governing Body. The ILO is unique among UN agencies because it is not composed only of governments. One of the measures taken was the formation of the International Labour Organisation (ILO). 4. It has a tripartite constitution.1 BACKGROUND ON ILO Sequel to the Second World War.86 Suffice to add that the ILO is the first to adopt a Convention concerned with IP rights. 87 Ibid. These three parties are the ILO constituents. employers and workers. note 18 at 173. Oil Mineral Producing Areas Development Commission Decree No. though they sometimes find practical ways to engage ILO supervisory bodies through worker organizations. The tripartite structure of the ILO is reflected throughout its structure. 16 . As at 2009. 4.The Niger Delta Development Commission (NDDC)84 has also been established as successor organization to OMPADEC85 to evolve a master plan for the physical. the ILO had adopted 188 Conventions covering sundry issues. driven by the UN to more than ever before be involved in the protection of individual and group rights. environmental protection and socio-economic development of the Niger Delta.

12 Ibid. 11 Ibid. 90 „Report of the Committee on Indigenous Populations‟.95 On mineral resource activities.91 The basic themes of the Convention as indicated in the Preamble are the protection of the indigenous and tribal population and their integration into the mainstream of nationhood. 88 89 ILO 107 Supra. the Convention recognizes the rights of land ownership by the traditional population. 49th Session. 2 & 3 ILO 107 93 Art.92 It however postulates that the integrationist approach is subject to certain proviso: it prohibits artificial assimilation93 and coercion in integration process. This brought about the ILO Convention 107. Record of Proceedings. note 17. 2(3) Ibid. See Art. ILO 107 uses the words „populations‟ and not „peoples‟. It provides for compensation with land of commensurate value or money. note 17. 4 Ibid. 94 Art. it states that this right could be negated in the face of economic development needs.94 it also imposes a duty to take due account of the cultural. ILO 169 Supra. 95 Art. This does not in any way equate with the traditional rights and attachment of indigenous population to their land. 97 Art.4. to avoid any controversial notion on self determination associated with the latter. 2(2) Ibid.97 This includes petroleum development.2 BACKGROUND ON ILO 169 The ILO has adopted two Conventions on IP rights viz: Convention 107 concerning the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries of 195788 which was later revised and replaced with Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries of 1989. the need to set up a detailed framework to deal with IP rights on a transnational level became more pertinent. International Labour Conference. 91 Art.96 Howbeit. religious and social values of the indigenous population. 96 Art. 1957 at 722.89 Following a Report of the ILO Committee on Indigenous Populations in 195790. 1 (1)(a)(b) ILO 107 92 Integration includes taking special measures to protect them in a non-discriminatory manner from the vagaries of modernisation and lifting their socio-economic life to be at par with other parts of the country. 17 .

5 ILO 169. 5 & 6.The philosophy of assimilation and integrationism which underlied this Convention became its albatross as it was seen as anachronistic and a breach of the social and cultural ethos of the indigenous populations. Thornberry99. it sparked off some dissent from the government side of the deliberations who argued that it might impugn on their sovereign powers. International Law and the Rights of Minorities (New York: Oxford University Press. In 1986. 102 See Art.98 In the words of P. This issue was taken further in the 1988 and 1989 annual sessions of the International Labour Conference. 100 Preamble paras. Thornberry. 18 . the use of the word „peoples‟ in place of „population‟ was well received by representatives of IPs in the deliberations as it recognized the existence of organized societies with identities of their own rather than mere groupings sharing some cultural or social characteristics. the ILO Governing Body convened a „Meeting of Experts‟ which recommended a review of ILO 107. 99 Ibid.3 IP RIGHTS RELATING TO PETROLEUM ACTIVITIES UNDER CONVENTION 169 OF 1989 The Preamble of Convention 169 which embodies its basic theme recognises: „ …the aspirations of (indigenous) peoples to exercise control over their own institutions. ILO Convention 169 was adopted. at 395. ILO 107 „is as much a contribution to the cultural destruction of indigenous groups as it is to their salvation‟.102 Although. within the framework of the States in which they live‟100 It seeks to bridge the lacuna in the previous Convention by expunging the assimilation and integrationist concept whilst recognizing and advancing the preservation of the indigenous peoples‟ cultural integrity101 and their rights to participate in all development decisions that affect them. 1991) at 342-362. 7 Ibid. In June 1989. ways of life and economic development and to maintain and develop their identities. 101 See Art. it was however agreed that the use of the 98 See P. 4. languages and religions.

Government shall respect the special importance for the cultures and spiritual values of the people with respect to their relationship with their land or territories. economic and environmental ramifications of such activities. the promotion of full realization of their economic.6 Ibid. as it is limited to the extent allowable by national policy With regards to petroleum development. 19 . cultural and religious values of the people.word „peoples‟ would not be construed as having any meaning ascribed to it under international law. veto over development projects but it provides a platform for the people to have a say in development activities that concern them and to evaluate the social. social and cultural rights and to assist them to eliminate socio-economic gaps that may exist between indigenous and other members of the national community.106 iv) Right to determine their development priorities as it affects their socio-economic and cultural lives. cultural. Part II of the Convention guarantees as follows: i) In applying the provisions of the Convention.108 103 104 Art. action plan for the protection of their right granted under national laws.104 ii) Enjoyment of full rights without hindrance or discrimination and with due consideration of the social. the ILO has stated that the right does not confer on IPs.103 Specific rights for Indigenous Peoples under Convention 169 include: i) Government‟s responsibility to develop.105 iii) Appropriate and adequate consultation and participation of the people to be done in good faith. Art. 13 Ibid. 1(3) Ibid. However. 108 Art. 3. 2 Ibid.107 This right may appear to undermine government‟s powers to design development plans for the country. the right is inchoate. 107 Art. Hence. 106 Art. with the participation of the peoples. 7 Ibid. 4 & 5 Ibid. 105 Art.

management and conservation of natural resources pertaining to their lands.) (London: Butterworth. 20 . 2000). 16 Ibid.111 The germane questions are: what are the „exceptional measures‟ that will necessitate relocation? What are these appropriate procedures to be followed when consent cannot be obtained? Convention 169 does not seem to have straight answers. To this extent.110 It remains a matter of conjecture whether this right should be read conjunctively with Article 14 which confers on IPs the right to use and management of lands not only owned by them but those which they are in possession of or which they otherwise use. and by extension sub-surface minerals? This position has been staunchly opposed by governments based on the wide held notion that ownership of mineral resources vests in the State. these should be spelt out in the national laws as required by the Convention. see E. 110 Art. Convention 169 provides that where the relocation of peoples is considered necessary „as an exceptional measure‟.ii) The right of ownership and possession of the peoples over land. B. It further provides that where their consent cannot be obtained. iv) In view of the fact that relocation of peoples might become imperative prior to commencing development activities. such relocation shall take place only following appropriate procedures established by national laws and regulations. such relocation shall take place only with their free and informed consent. 14 Ibid. It further stipulates that „wherever possible‟. Understandably. the provision on the right of the people to return to their lands once the grounds for relocation ceases 109 Art. Burn. Cheshire and Burn‟s Modern Law of Real Property (15th ed. Furthermore. the people shall participate in the benefit of such activities and receive a fair compensation for any damages which they may sustain as a result of such activities. 15 ILO 169 Supra. Furthermore. Article 15(2) provides that in cases where government retains subsurface mineral rights. does the right to surface land extend to sub-surface rights. Understanding Land Law (3rd ed.109 iii) The rights of the peoples to the use. The phrase „wherever possible‟ casts a sore point on this right as it could serve as an alibi for government to renege on its responsibilities.H. Perrins. This covers land which they own or are in possession of without ownership.) (London: Cavendish. governments shall establish or maintain procedures through which they will consult with the peoples to ascertain the implications of resource exploitation to their interests. This appears to be a more extensive guarantee. For a detailed treatise on classes of interest in land. 1994). 111 Art.

Nigeria can only remain ambivalent and ignore these vociferous ululations to its peril. respect and protection of IP rights generally and specifically with regards to petroleum and natural resources development in the country. Nigeria has been a member of the ILO since 1960. Whilst the ratification and domestication of ILO 169 is not a be all. 112 113 Art. It has also highlighted the lack of clear political will on the part of the Nigerian Government to protect and promote IP rights relating to its oil ventures. Nigeria is yet to ratify the ILO Convention 169.4 NIGERIA’S STATUS IN THE ILO AND REGARDING ILO 169 Sadly. nay inadequacy of clear and specific provisions regarding IP rights viz-a-viz petroleum development in Nigeria. end all in the pursuit of IP rights protection in petroleum exploitation in Nigeria. though Nigeria is a member of the ILO113 and is signatory to a number of ILO Conventions114 as profiled above.112 Notwithstanding its shortcomings. v) Respect for procedures established by the peoples for the transmission of land rights.0 CONCLUSION AND RECOMMENDATIONS The foregoing has underscored the lack. 17 & 18 Ibid. 4. It therefore becomes very imperative for Nigeria to urgently ratify and „domesticate‟ the ILO Convention 169.to exist may not be „readily beneficial‟ with respect to petroleum development except there are express provisions on decommissioning and land rehabilitation/reclamation after exploitation. 21 . institutional recognition. 5. the chorus for the guarantee of IP rights is getting louder by the day. the ILO 169 remains the most extensive international treaty that espouses the recognition and protection of the rights of IPs. it would be a significant step forward in the „definite‟. Globally. 114 Nigeria has ratified a total of 38 ILO conventions (34 are still in force) till date.

mandatorily respected by both Government and oil companies alike and capable of judicial enforcement. Nigeria also needs to respect the provisions of the ACHPR Act on peoples‟ rights and domesticate other relevant international treaties which it has ratified so as to give them the full force of law municipally and not merely have them as beatific formal ratifications. Given the crucial role of a vibrant and articulate judiciary and regulatory system in safeguarding IP rights. these institutions need to be strengthened technically and financially and their independence guaranteed. Nigeria‟s legislative. No one. Informed Consent (FPIC) should be entrenched in Nigeria‟s property. regulatory and administrative framework on the above issues must be streamlined and harmonized to make for clarity. or worse still conspiracy against IP rights and protection.That being said. Furthermore. The recently passed Local Content Act 2010 which mandates oil companies to employ a stipulated percentage of indigenous capacity must also be given bite. the Economic. 1978 needs to be repealed. should be above the law. The practitioners also need to develop the strength of character to safeguard the enforcement of these rights and muster the needed judicial and administrative fortitude to take drastic decisions against recalcitrant petroleum operators. coherence and ease of enforcement. The Land Use Act. Social and Cultural rights entrenched therein should be made justiciable. Civil and political rights as guaranteed under the 1999 Constitution must continue to be respected and given full judicial and institutional support. or amended at the least. The pecuniary gains attachable to oil exploitation should not blindfold government from the damning consequences of the neglect. A comprehensive framework for industry transparency. Prior. The Federal Government of Nigeria‟s 2012 Gas Flaring Deadline must be taken seriously „this time‟. 22 . public participation and consultation through Free. Government must respect and dedicatedly implement its laws. petroleum and environmental framework and complied with by all stakeholders. The Petroleum Industry Bill which seeks to repeal and replace the Petroleum Act and other allied legislations must recognize the right of IPs to freely dispose their natural resources. to provide for the recognition and protection of IP rights to land. no company.

the Federal Government must resuscitate the war against institutional corruption. adequate social and infrastructural amenities and granted fair political representation. been allocated hitherto to the IPs are being recklessly squandered by shameless politicians and their cronies.Petroleum yields enormous income for the Nigerian federation. Government must see the imperative to recognize. desist from further acts of or complicity in human rights abuse and live 23 . the goose that lays the golden eggs should be given a true sense of belonging and adequately catered for. The recent setting up of a Sovereign Wealth Fund by the Nigerian government to retain. this paper recommends an upward review of the resource revenue sharing formula for the IPs of the Niger Delta from its present minuscule 13%. In this connection. especially at the State and Local Government levels where the „little‟ revenue. we do not inherit the planet from our ancestors but borrow it from our children. knowing full well that the way it tackles petroleum exploitation/IP right issues will be indicative of how much it respects the human rights of its citizens. Government must also ensure that these IPs are provided with employment opportunities. for according to the native American proverb. protect and promote IP rights in petroleum exploitation as a matter of utmost priority. would be a sustainable way to preserve the rewards of petroleum exploitation for present and future generations even when exploitation activities have ceased. They must make adequate technical and financial provisions for decommissioning to cater for land & environmental rehabilitation at the end of petroleum exploitation. Honest and transparent governance would ensure that this revenue is utilized for the benefits of the people. Oil companies in Nigeria must quit their double standards and stop engaging in stark disregard for IP rights and other inhumane activities which they will never attempt in their home countries. on a long-term. a chunk of the proceeds of petroleum exploitation. They must carry out their operations in socially responsible ways. In the same vein. conduct appropriate social and environmental impact assessments and extensively and sincerely consult with IPs before and whilst undertaking petroleum activities.

24 . To do otherwise would be tantamount to sitting on a time bomb.up to their moral responsibility to respect the peoples‟ rights. which would someday explode on their faces.

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