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Assessing the Role of the Courts in Enhancing Access to Environmental Justice in Oil Pollution Matters in Nigeria

Document Cited authorities 1 Cited in Related
Vincent
DOI10.3366/ajicl.2020.0310
Date01 May 2020
Published date01 May 2020
Pages195-218
INTRODUCTION

Seeking redress is an important aspect of securing and preserving rights and having access to seeking redress where there is infringement of rights is the fullness of the rights. Having access to court and legal procedure should be open to everyone irrespective of race, wealth or circumstances. In legal parlance, the general understanding is that justice is not only done, but also seen to be done. For justice to be seen to be done there must be access to justice and the courts play a very important role in achieving this. As noted by Mulkey, while the statutory availability of adequate enforcement mechanisms is a necessary starting point and the capacity and will to exercise these authorities is prerequisite, the courts provide the ultimate recourse.1 In environmental matters, the court interprets and implements the laws, which help their understanding and may expose regulatory flaws in judicial review. Also in environmental law, environmental justice is broadly categorised into substantive and procedural justice. There are three main aspects of procedural environmental justice: access to environmental information, to participation and to justice. This article focuses on the last aspect – access to justice – by examining the role of the courts in interpreting environmental laws and applying common law rules with a view to enhancing access to environmental justice in Nigeria. It discusses some court decisions to show the importance of the judiciary in justice procurement for the victims of environmental pollution that arose because of oil exploration in the Niger Delta area of Nigeria. It generally argues that the courts play a vital role in enabling the victims of environmental problems to achieve justice by developing the laws and regulations as well as promoting their implementation.

Apart from the introduction, the second part of this article deals with the history and meaning of environmental justice and the third part deals with the principles of access to justice and the courts. The fourth part deals with the process of enforcing the right to access to justice in environmental matters by the courts while the fifth part discusses the Nigerian judicial decisions relating to access to environmental justice in environmental and oil pollution matters in Nigeria. The sixth part appraises the judicial pronouncements with a view to finding out whether those favourable decisions meet what the author views as achieving environmental justice for the Niger Deltans. The sixth part also examines relevant decisions of the two African regional courts based on the African Charter on Human and Peoples Rights, also with a view to achieving access to environmental justice and protection of their human rights for the victims of oil pollution in Nigeria. The final part will be the conclusion.

 HISTORY AND MEANING OF ENVIRONMENTAL JUSTICE

The environmental justice concept started in the United States of America to tackle assumed inequities in the distribution of hazardous waste sites.2 It emerged in response to environmental and social inequities, threats to public health, unequal protection, differential enforcement and disparate treatment received by the poor and particularly people of colour. The first major struggle according to Szasz and Meuser 19973 was about the siting of a landfill containing soil contaminated with polychlorinated biphenyl (PCB) in a predominantly African American neighbourhood in Warren County, North Carolina in the US, in 1978 and 1982. However, before Warren County, building a school and housing over and around the abandoned Love Canal in Niagara Falls caused problems because the area was previously used to dump chemicals. All these events eventually contributed to the then US President, Bill Clinton, signing an Executive Order in 1994 to address environmental justice.4 The Order requires that federal agencies should address environmental justice as part of their overall mission, and identify and address disproportionately high adverse human health or environmental impacts of their policies, programmes and activities on minority, low-income and tribal communities’ populations in the US and its territories and possessions.5 The Executive Order also required the agencies to prepare a strategy for integrating environmental justice into all of their activities hence the creation of an Inter-Agency Working Group on Environmental Justice headed by the United States Environmental Protection Agency (EPA). Part of the Executive Order was to undertake EJ impact assessments, which are a highly focused form of social impact assessment aiming to ‘determine whether a proposed federal activity would impact low-income and minority populations to a greater extent than it would impact a community's general population’.6

The original definition of environmental justice emanated from the US EPA. According to the EPA:

Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. EPA has this goal for all communities and persons across this Nation. It will be achieved when everyone enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.7

It is important to examine the definitional elements of ‘fair treatment’ and ‘meaningful involvement’. ‘Fair treatment’ in this context relates to substantive environmental justice and means that no population bears a disproportionate share of negative environmental consequences resulting from industrial, municipal and commercial operations, or from the execution of federal, state and local laws, regulations and policies.8 On the other hand, ‘meaningful involvement’, which is related to procedural justice, is giving the potentially affected community residents an appropriate opportunity to participate in decisions about a proposed activity that will affect their environment and/or health

The definition of environmental justice is now so broad that it encompasses a very wide range of interests, though it has retained its fundamental meaning.9 It now includes distributions between states, gender, age and future generation rights and it is still developing. This is why the definition has become somewhat multi-faceted. Accordingly, Walker and Bulkeley10 noted that ‘the terminology of environmental justice has now travelled beyond the US and the sites of grassroots activism within which it originated.’ In fact, Bullard explained it thus: ‘The reality is that no single definition of environmental justice exists.’11 For the above stated reasons, it has different definitions that reflect the diversity in the socio-economic or political circumstances of the definer. In Australia, Low and Gleeson discussed EJ in connection with relative poverty, health and environmental risk.12 Low and Gleeson's analysis shows the distribution of hazardous industries in Melbourne and the high correlation to socio-economic disadvantage while a high proportion of the excluded groups are indigenous aborigines who are more likely to suffer from health problems caused by environmental problems because of the location of their homes with regard to hazardous industrial development.

From same African context, McDonald defines it thus:

Environmental justice is about social transformation directed towards meeting basic human needs and enhancing our quality of life – economic quality, healthcare, housing, human rights, environmental protection and democracy … the environmental justice approach seeks to challenge the abuse of power which results in poor people having to suffer the effects of environmental damage caused by the greed of others.13

To Schlosberg14 the principle of procedure is central to environmental justice because that is a way to achieve equity and recognition of the society. According to Stookes, the procedural element necessitates access to the law to resolve environmental problems, uphold environmental laws and provide an opportunity for people to have a voice in relation to their environment.15

Going by the definitions and discussion herein across many continents of the globe, the author concludes that there is no one definition of environmental justice, but there are shared principles that include the economically disadvantaged/poorest people globally which capture the core essence of environmental justice. In the US, it is about low-income groups and Indian tribes,16 in Australia it connects relative poverty and environmental risk17 while in Africa, it relates to protection for the benefit of present and future generations through reasonable legislative and other measures that prevent pollution. The common principles in the definitions above are in both the procedural and distributive aspects, whether present or future or whether distributing hazards or benefits. It is important to note, however, that the focus of this article is not substantive environmental justice but access to justice, which is an aspect of procedural environmental justice leading the discussion to the next part on access to justice and the role of the courts.

 ACCESS TO JUSTICE AND THE COURTS

Access to justice is a vital instrument in a legal system. The Universal Declaration on Human Rights established the right to access to justice. It stated that: ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’18 Despite its importance, the definition has not been easy. For example, Bedner19 defines it as access by people, in particular from poor and disadvantaged groups, to fair, effective and accountable mechanisms for the protection of rights...

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