The doctrine of absolute liability and the right to a safe environment: issues and challenges in the liability of environmental polluters in Nigeria

Abstract

Oil and gas exploitation and production in Nigeria, particularly in the Niger Delta region, is awash with pollution incidents with its attendant impact on the health of locals as well as foreseeable damage on the biodiversity of the region. Owing to this development, victims of environmental pollution have repeatedly instituted legal actions against transnational corporations (TNCs) and the Federal Government with a view to recovering damages and enforcing rights via statutory claims (which basically reflects traditional English common law rules on liability). Notwithstanding, it is observed that such claims have not availed victims of pollution with the basic reliefs sought, and this is seemingly traceable to the ‘economic interest’ which government retains in oil and gas activities, the technicalities in proving negligence on the part of TNCs; as a vast majority of oil pollution incidents are caused by ‘acts of third parties’, and under such scenarios, TNCs will only be liable where they neglect to protect oil facilities, and the lack of direct legal provisions to provide for fundamental rights to a clean environment, although even before Nigeria attained her independence in 1960 the Oil Pipelines Act of 1955 addressed some oil-related environmental problems. These challenges, amongst others have prompted victims of environmental pollution in Nigeria, in recent years, to seek for legal redress in foreign jurisdictions. The current research opted for turnaround in the environmental justice system by considering whether there is any legal nexus between environmental pollution and breach of fundamental rights (‘rights to a healthy environment’) of the people, and whether such right will generate an absolute liability against TNCs? It is recognised that ‘fundamental rights’ which are found in the Nigerian Constitution have higher status over other rights as contained in statutes, and where these rights are violated, liability will be either strict or absolute as the case may be; this is pursuant to findings in the current research that the defence of ‘act of third parties’ and others may not be sustained in fundamental rights enforcement proceedings, and owing to this, victims of environmental pollution incidents in Nigeria will be able to get adequate redress and secure higher standards of environmental quality. This conclusion is reached through a close examination of legal instruments, case-law and opinions of experts in Nigeria and a limited number of other jurisdictions.