ABSTRACT
Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, colour, sex, national origin or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.
Environmental Justice emerged as a concept in the United States in the early 1980’s; its proponents generally view the environment as encompassing and seek to redress inequitable distributions of environmental burdens.
In Nigeria, foreign exchange earnings from crude oil sources account for the single most important source of Nigeria’s foreign exchange. Hence, since oil was discovered in the Niger Delta region of the country in commercial quantities in 1956, there have been increased activities in the oil sector in the areas of exploration and exploitation, refining, export and domestic distribution. While these oil activities have generated immense financial benefits for the country, they have also created serious health and environmental problems.
With the increase in the oil activities and its resultant consequences, it became clear that the common law remedies were not easily available to the victims of the pollution. This worked injustice on the victims. Further there was no comprehensive national policy and enforcement statute for the country’s environmental protection. It took the 1988 Koko toxic waste dump for the country to fashion out a national policy on the Environment with supporting statutory legislations.
However, even with the statutory legislation in place the problems of the victims were far from over. These victims hardly get any justice from the courts. This is because of the many impediments that comes with environmental litigation, the most troublesome being the doctrine of locus standi. The doctrine of locus standi is a common law doctrine that has found its way into our legal system. Locus standi is the existence of a right of an individual or group of individuals to bring an action before a court of law for adjudication.
This work seeks to examine the concept of environmental justice in Nigeria, what constitutes Environmental justice, its impediments, and to this extent, we will look at the doctrine of locus standi and its effect on Environmental justice. We will also look at other impediments to Environmental justice. We will also look at few foreign jurisdictions to find out how the concept of environmental justice has been applied. Finally, we will proffer solutions on how best to achieve environmental justice.
This work is divided into five chapters. Chapter one deals with the general introduction. Chapter two deals with the issue of locus standi in Nigeria. Chapter three deals with the challenges of Environmental justice. Chapter four deals with Environmental justice in foreign jurisdictions. Finally, chapter five deal with conclusion and recommendation.
CHAPTER ONE
INTRODUCTION
1.1 Definition of Terms
1.1.1 Environment
The term ‘environment’ has been given different definitions. It has been defined as the totality of physical, economic, cultural, aesthetic and social circumstances which surround and affect the desirability and value of property and which also affect the quality of peoples’ lives.[1] It has also been defined as‘the components of the earth’ and includes
- Land, water and air including all layers of the atmosphere
- All organic and inorganic matter and living organisms and
- The interacting natural systems that include components referred to in paragraphs (a) and (b).[2]
The first definition covers the broad concept of ‘environment’. In that respect, they embrace everything within and around man that may have effect on or be affected by man. This more expansive concept of environment is synonymous with the human environment.[3]
The definition under Nigerian law covers a narrower concept of “environment”. This concept restricts the meaning to the physical or natural environment, comprising God given natural resources, natural elements and natural environment whether or not modified by man.[4] This narrower concept of environment is therefore synonymous with the physical or natural environment.[5] Flowing from the above definitions, environment is therefore earth in its totality; air, water and land.
1.1.2 Environmental Law
The concept of environmental law refers to the integrated rules and principles i.e. legal norms, the purpose of which is to achieve environmental conservation.[6]Environmental law is a complex and interlocking body of treaties, conventions, statutes, regulations, and common law that operates to regulate the interaction of humanity and the natural environment towards the purpose of reducing the impacts of human activity.[7]Environmental law draws from and is influenced by principles of environmentalism, including ecology, conservation, stewardship, responsibility and sustainability. Pollution control laws generally are intended (often with varying degrees of emphasis) to protect and preserve both the natural environment and human health. Resource conservation and management laws generally balance (again, often with varying degrees of emphasis) the benefits of preservation and economic exploitation of resources.[8] From an economic perspective environmental laws may be understood as concerned with the prevention of present and future externalities and preservation of common resources from individual exhaustion.[9]
Environmental law is also defined as a body of rules and regulations, and orders and statutes, concerned with the maintenance and protection of the natural environment of a country[10]. It provides basis for measuring and apportioning liability in cases of environmental crime and the failure to comply with its provisions[11].
Environmental law in Nigeria is a body of rules and regulation which have as their object or effect, the protection of the environment from pollution and the wasteful depletion of natural resources and ensure sustainable development.[12]
Under the Nigerian law, environmental law includes all the sources of environmental law including the constitution, International treaties, state laws, local government laws and common law.
Notwithstanding the above definitions of environmental law, it is difficult to give a precise definition of environmental law because of its nature. However, I subscribe to the definition of M.T Ladan who defined it as a body of rules and regulation which have as their object or effect, the protection of the environment from pollution and the wasteful depletion of natural resources and ensure sustainable development.
1.1.3 Environmental Protection
Environmental protection definition includes all available practices used to protect our environment, whether on individual, organizational or global (international) level[13].Environmental protection is a practice of protecting the environment, on individual, organizational or governmental levels, for the benefit of the natural environment and (or) humans[14].
Environmental protection is therefore the conservation of the earth’s resources for future use. It includes using the environment judiciously so as to leave a substantial amount of unharmed resources for the future generations.
The chief beneficiary of environmental law is mankind since the law is designed to improve mankind’s living conditions.[15] Generally speaking, mankind benefits because environmental protection aims to saving mankind from itself. Unless legal checks and balances are imposed on mankind’s present activities, future generations may unduly suffer for present generation’s reckless environmentally damaging activity.[16]
Another goal of environmental protection is anchored on the principle that the polluter pays.[17] Under this principle, the polluter must be held liable for the consequences of his actions. This principle involves holding the polluter liable for compensatory damages to all the victims of his deleterious activities in the environment.[18]
1.1.4 Environmental Justice
This is the fair treatment and meaningful involvement of all people regardless of race, colour, sex, national origin or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.[19] It has also been defined as social transformation directed towards meeting basic human needs and enhancing our quality of life-economic quality, health care, housing, human rights, environmental protection and democracy.[20]
Environmental justice is therefore a means of distributing the burdens and benefits of environmental degradation in a way that a particular group of persons doesn’t get all the benefits of development and the other gets only the burdens.
1.1.5 Locus Standi
Locus Standi is a Latin word which means a place of standing; standing in court; a right of appearance in a justice or before a legislative body on a given question.[21] Reduced to its bare bones, it means standing to sue.[22] The concept of locus standi concerns the capacity of a person to institute legal proceedings in a court of law or other competent tribunal.[23]
In Owodunmi v. Registered Trustees of Celestial Church & Ors[24]Ogundare JSC in his lead judgment held on page 338 f as follows:
The term locus standi (or standing) denotes the legal capacity to institute proceedings in a Court of law. Standing to sue is not dependant on the success or merits of a case; it is a condition precedent to a determination on the merits. It follows therefore that if the plaintiff has no locus standi or standing to sue, it is not necessary to consider whether there is a genuine case on the merits; his case must be thrown out as being incompetent.
In the case of Adesanya v President of the Republic of Nigeria& Anor,[25] it was held that
The term "locus standi" denotes legal capacity to institute proceedings in a court of law. It is used interchangeably with terms like "standing" or "title to sue.[26]
In the case of Chief Gafaru Arowolo v Chief Sunday Olowookere,[27]which concerns chieftaincy matters, it was pointed out in the ratio decidendiPer Muhammad, J.S.C (Pp. 38-39, Paras. A-F)that:
The whole concept of the Latin Maxim locus standi, means a place of standing. Its legal application connotes that legal right which a person has to bring or file an action or be heard in a Court of law. Certainly, the law is sacrosanct that a party will have locus standi in a matter only if he has special legal right, or, alternatively, if he can show that he has sufficient or special interest in the performance of a duty sought to be enforced, or where his interest is adversely affected. In a legal tussle where the claim of the plaintiff is on chieftaincy matter, the law is well settled that it is not enough for the plaintiff to state that he is a member of the family; he has to state further that he has an interest in the chieftaincy title, and furthermore, he should state in his statement of claim how his interest in the chieftaincy title arose. See Momoh & Anor v. Oluto (1970) All NLR 121 at 127. It is thus, the legal duty of the plaintiff to show to the Court, through his pleadings and evidence, that he has the standing (locus standi) to institute the action either for himself or as a representative of his family, whose civil rights and obligations have been, or are in danger of being violated or infringed. He also has to show that he or the family he represents have a justiciable dispute with the defendant.
In delivering the lead judgment, Olufunlola Oyelola Adekeye, J.S.C held that:
Strictly speaking the term "locus standi" denotes the legal capacity to institute an action in a Court of law. It is a status which a plaintiff must have before being heard in Court. It is a condition precedent to the determination of a suit on its merits. The question whether a plaintiff has the locus standi to sue is determinable from the totality of the averments in the statement of claim.
From the above definitions, it is clear that a person who has no right of standing in the courts will not be given an audience.
[1] Blacks Law Dictionary, 6th ed. (St Paul Minasota: West Printing Co, 1990).
[2]Section 61 of the Environmental Impact Assessment Act CAP E12 LFN 2004.
[3] O.Ajai, Law, Judiciary and the Environment in Nigeria, Perspectives on Law and Justice, Umezulike I.A & Nweze C.C ed. (Fourth Dimension Publishers) p.240.
[4]ibid.
[5]ibid.
[6] O.Ajai, loc.cit.
[7] Environmental Law, retrieved from http://en.wikipedia.org/wiki/Environmental_law
[8]ibid.
[9]ibid.
[10]Environmental Law, retrieved from http://www.businessdictionary.com/definition/environmental-law.html
[11]ibid.
[12]M.T. Ladan, Biodiversity, Environmental Litigation, Human Rights and Access to Environmental Justice (Zaria: Faith Printers and Publishers, 2007).
[13]Environmental protection - Definition and key issues retrieved from http://ecological-problems.blogspot.com/2010/09/environmental-protection-definition-and.html
[14]http://en.wikipedia.org/wiki/Environmental_protection
[15] M. Ikharaile, “A Constitutional Imperative on the Environment: A Programme of Action for Nigeria” in Simpson & Falogun, ed., cited in Atsegbua, L, et al., Environmental Law in Nigeria: Theory and Practice, Ababa Press 2004, p.150.
[16]S.G. Ogbodo, “Environmental protection in Nigeria: Two Decades after the Koko Incident”Annual survey of International and Comparative Law: Vol.15, Iss.1, Article 2 p.4.
[17] This is a European ideology on the environment that insists that the producer of waste is responsible for its proper disposal.
[18] R.A. Malcolm, Guidebook to Environmental Law, 1994, p.209.
[19] The United States Environmental Protection Agency.
[20] Quarterly newsletter of the South African Environmental Justice Networking Forum quoted in McDonald David, A. Environmental Justice in South Africa, Cape Town: Ohio UP, 2002.
[21] H.C. Black: Blacks Law Dictionary 6th ed. (St Paul Minasota: West Printing Co, 1990) p.941;Omega Bank Plc. v Govt. Ekiti State (2007) 16 NWLR (Pt. 1061) p. 445." Per OMOLEYE, J.C.A. (p.51, Paras.B-C).
[22] E.U Onyeabor, “Expanding the Scope of Locus Standi in Environmental Litigation”, Unizik Law Journal; Vol.7 No.1 2010 p.67.
[23] E.U Onyeabor, “Protecting Victims of Environmental Abuse in Nigeria”, Consumer Journal; Vol.4 No.2, 2008 p.94.
[24](2000) 10 NWLR (pt 675) 315.
[25](1981) 2NCLR 358.
[26] Per Fatayi-Williams, J.S.C. (P. 22, paras. D-E).
[27](2011) LPELR- SC 200/2003 retrieved from http://www.lawpavilionpersonal.com/newfulllawreport.jsp?suite=olabisi@9thfloor&pk=SC.200/2003&apk=17888#17888
