PROYECTO DE MEJORAMIENTO EDUCATIVO DIDÁCTICO

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where the project is to be carried out during national emergency for which temporary measures have been taken by the Government; and where the Agency is of the opinion that the proposed project is to be carried out in response to the need for public health or safety.⁵⁹³

It is not clear what parameter the President of Nigeria will adopt in coming to the conclusion that a proposed project will have a minimal impact on the environment and so such be excluded from EIA study. The same applies to projects to be carried out by the Federal, State and Local Government authorities where it is stated that such projects to be executed in the exercise of powers or functions conferred on each tier of government may dispense with EIA study.⁵⁹⁴ It is submitted that these discretions should be removed or qualified and appropriate guidelines prescribed for the exercise of such discretions for the greater protection of the environment.

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limits of the territorial waters of Nigeria and all other waters (including inland waters) which are within those limits and are navigable by sea going ships.⁵⁹⁹

By the foregoing provisions, ONWA intends to protect the country’s marine environment from pollution arising from oil spillages which have been a recurring decimal in the operations of MNOCs in the Niger Delta. This is to protect the environment, the aquatic life, biological and marine living resources and the mangrove forests from being destroyed. The prohibition against discharge of oil into the prohibited sea areas is to ensure that ship owners or masters or the occupiers of land on which vessels are kept exercise caution in carrying or transporting oil in the marine environment.

Quite surprisingly, the Act creates two sets of defences to the offences under Sections 1 and 3. The first set of defences avails on owner or master of a ship or vessel. Thus, the Act declares that there will be no liability in the following cases:

(a) where the oil or mixture escaped as a result of damage to the vessel and reasonable steps were taken to prevent damage, or to stop the escape, or to reduce escape;⁶⁰⁰

(b) where the escape of the oil was due to leakage and not due to negligence on the part of the owner or master of the vessel, and reasonable steps were taken as soon as practicable to stop or reduce it;⁶⁰¹

(c) where the discharge or mixture was done in order to secure the safety of any vessel or of preventing damage to any vessel or cargo to save life.⁶⁰² Where however the court forms the opinion that the step taken was not reasonable in the circumstance, this defence will not apply.

599Ibid, s 3(2).

600 ONWA 2004, s 4(2)(a).

601 ONWA 2004, s 4(2)(b).

602Ibid, s 4(1).

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The second set of defences under the act can be found in Section 3 and inures in favour of the occupier of land or person in charge of any apparatus used in transferring oil and from which oil or a mixture containing oil is alleged to have escaped. Such an occupier of land or person in custody of the apparatus will escape liability if he or she proves any of the following:

(a) that the escape was not due to any negligence on his part and that as soon as the escape was discovered, that all reasonable steps were taken to stop or reduce the escape;⁶⁰³

(b) That the discharge was caused by a person on the land without the occupier’s consent, express or implied;⁶⁰⁴

(c) That the oil was contained in an effluent produced by operations from the refining of oil;⁶⁰⁵

(d) That it was not practicable to dispose of the effluent otherwise than by discharging it into the prohibited sea areas;⁶⁰⁶

(e) That all reasonably practicable steps have been taken to eliminate oil from the effluents.⁶⁰⁷

Where the above defences are successfully raised, the oil spiller, according to the Act will escape liability. One major weakness of this Act is that the defences are too widely drafted and appear to actually encourage the pollution of Nigeria’s marine environment. The Niger Delta environment where oil and gas production is carried out has been described as a delicate wetland. The mangrove forests, the swamps, the rivers and the marine living resources, all demand stricter measures for their protection. To permit the discharge of oil

603Ibid, s 4(3).

604ONWA 2004, s 4(4).

605Ibid, s 4(5)(a).

606 ONWA 2004, s 4(5)(b).

607Ibid, s 4(5)(c).

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from vessels or ships into the sea area in the manner done by ONWA smacks of gross insensitivity to the environment, health and safety of the Niger Delta people who bear the brunt of oil pollution whenever it occurs. It is submitted that there is no basis for the defences under international law. ONWA should be amended to reflect the seriousness and gravity of oil spillage, especially in a marine environment. In addition, the Act prescribes a fine of two thousand naira as punishment for committing any of the offences created under the Act. This is ridiculous and cannot reasonably be expected to deter the fouling of the country’s water bodies through reckless acts. Stiffer monetary penalties, in addition to imprisonment and revocation of operating licences/permits, are recommended.