2014

Land Ownership, Mineral Development and Agriculture in Nigeria: An Examination of Key Issues and Challenges

Chilenye Nwapi

Abstract

This paper analyzes the interface between mineral development and agriculture in the context of land ownership and control in Nigeria. It critically examines the key issues regarding land ownership and control, examines the rules governing use of land for mineral development under the Nigerian Petroleum Act and the Minerals and Mining Act, and examines the nature of the rights granted to oil and gas and mineral operators with a view to ascertaining how these interface with the rights of agricultural landowners. The overall aim is to identify and analyze how the conflict between mineral development and agriculture can be reconciled in Nigeria within the context of land ownership and control.

Keywords: Land Ownership, Agriculture, Mineral Development, Eminent Domain, Nigeria


Environmental Sentencing Policy in Alberta: A Critical Review

Chilenye Nwapi

Abstract

This paper reviews the sentencing policy in environmental cases in Alberta, Canada with a view to identifying the underlying theoretical justifications, the prevailing sentencing options and the principles governing their application, and the factors that influence environmental sentencing generally in Alberta. The ultimate goal is to assess the application of the sentencing principles and factors to determine their usefulness and potential effectiveness. After analyzing the legal nature of environmental offences, the paper proceeds to analyze the theories informing environmental sentencing in Alberta. This is followed by a discussion of the available environmental sentencing options in Alberta and lastly by an analysis of the factors considered in the application of those options. A major conclusion of this paper is that there appears to be a deliberate policy towards increased fines – both traditional fines (fines simpliciter) and non-traditional fines (such as fines imposed in the nature of creative sentencing). This policy reflects increasing awareness in Alberta of the need to toughen up on environmental criminals.

Keywords: Environmental sentencing, Creative sentencing, Alberta

Resource Extraction in the Courtroom: The Significance of Choc v. Hudbay Minerals Inc for the Future of Transnational Justice in Canada

Chilenye Nwapi

Abstract

Canada has not seen much transnational litigation along the lines of the United States Alien Tort Statute. Until the decision of the Superior Court of Ontario in Choc v Hudbay Mineral Inc., no such case had survived pretrial challenges. This article explores the significance of the Hudbay decision for the future of transnational justice in Canada. The paper argues that Hudbay is significant for its attempt to recognize a novel duty of care between Canadian corporations and local communities harmed by the activities of Canadian corporations’ subsidiaries abroad. It is also significant for the plaintiffs’ successful use of the direct liability theory. Lastly, the decision underscored the need for plaintiff lawyers to place sufficient particulars of all allegations on the pleadings, a lesson that must have been learned from the failure of the previous cases.

Keywords: Transnational litigation, transnational corporations, duty of care, corporate complicity in human rights abuses

A Necessary Look at Necessity Jurisdiction

 Chilenye Nwapi

Abstract

While the doctrine of necessity jurisdiction is relatively new globally, it is fast garnering academic, legislative, and judicial acceptance. However, its exact nature and appropriate scope of application occupy a fringe position in both jurisprudence and literature. This article is an attempt to explore the nature and scope of the doctrine with a view to suggesting appropriate limits to its application. It explores the doctrines legislative and jurisprudential development in Canada as well as its international validity.

Keywords: Necessity Jurisdiction; Forum Necessitatis; Emergency Jurisdiction; Access to Justice

Enhancing the Effectiveness of Transparency in Extractive Resource Governance: A Nigerian Case Study

 Chilenye Nwapi

Abstract

Nigeria has been acclaimed as a model for the implementation of the principles established under the Extractive Industries Transparency Initiative (EITI). The goal of the principles is to promote accountability and effective management of resource revenues, which in turn would result in improvements in public welfare and better developmental outcomes, such as a more equitable distribution of wealth, improved socio-economic conditions, and poverty alleviation. However, a look at the socioeconomic condition in Nigeria raises questions regarding the impact of the achievements of NEITI on public welfare. Corruption remains endemic in the oil and gas industry, the sector on which the implementation of the EITI principles has been almost entirely focused. This article analyzes Nigeria’s experience with the implementation of NEITI with a view to theorizing about the reasons behind the lack of, or minimal,  improvements in the lives of ordinary Nigerians as well as the persistence of corruption despite Nigeria’s acclaimed achievements in EITI implementation. The article argues that while EITI is an important driver of economic progress in Nigeria, it should not be viewed as enough to overcome the broader problems hindering improvements in public welfare. Other factors are necessary to translate the gains of EITI into visible public welfare improvements. The article identifies those factors and analyzes how they hold back the gains of EITI in Nigeria as well as its implications for emerging extractive countries signing or considering signing up with EITI.

Keywords: extractive resource governance, transparency, public welfare improvements, corruption

Environmental Impact Assessment Process for Oil, Gas and Mining Projects in Nigeria: A Critical Analysis Article

 Chilenye Nwapi

Abstract

This article examines legislation and practice concerning the environmental impact assessment (EIA) process for oil and gas projects in Nigeria. It argues that although EIAs have become a standard legal requirement for all oil, gas and mining projects in Nigeria, not much is achieved in terms of managing the impacts of these projects. The reasons are legion. They range from the lack of political commitment on the part of the government to enforce environmental standards, the scarcity of baseline information against which the environmental impacts can be assessed, and non-implementation, or lack of committed implementation, of EIA reports. The result is that operators carry out EIAs to satisfy the dry letters of regulatory provisions for the purpose of obtaining operational permits. The article recognizes that some improvements have been made in the EIA system relevant to oil and gas development, especially since the inauguration of democracy in Nigeria in 1999. It submits that those changes have not produced any meaningful improvement due to the same factors outlined above.

Jurisdiction by Necessity and the Regulation of the Transnational Corporate Actor

Chilenye Nwapi

Abstract

This article examines the feasibility of using the jurisdiction by necessity doctrine to promote the accountability of transnational corporations (TNCs) for extraterritorial human and environmental rights abuses committed in developing countries with weak accountability mechanisms. Under the doctrine, a court devoid of jurisdiction may nevertheless hear a dispute where it considers that there is no other court where the dispute may be heard or where the plaintiff may be reasonably expected to bring the action. The article analyzes the inadequacy of existing jurisdictional doctrines in light of the complex web of operations of TNCs, which shields them from the reach of traditional jurisdictional doctrines. After exploring the origin of the jurisdiction by necessity doctrine, the article critically examines the elements of the doctrine to see how they may be applied to the regulation of TNCs. The article argues that the emergence of the jurisdiction by necessity doctrine offers plaintiffs in transnational corporate human rights litigation a new jurisdictional possibility to weigh, as the doctrine has the potential to address some of the jurisdictional difficulties encountered in such litigation.

 Keywords: jurisdiction, necessity jurisdiction, transnational corporations, human rights violations, extraterritorial regulation