Eko Atlantic Environmental Impact Assessment Legal Issues Presentation

Eko Atlantic Environmental Impact Assessment: Legal Issues Presentation By: Prof. M. T. Okorodudu-Fubara Faculty of Law, Obafemi Awolowo University, Ile-Ife. Okorodudu-Fubara, M. T. 2012 1

Presented @ Roundtable • SUSTAINABILITY OF COASTAL ENVIRONMENTS: THE UNCERTAINTIES AND RISKS OF INFRASTRUCTURAL DEVELOPMENTS • Date: Thursday, 27 September, 2012 • Venue: Nigerian Institute for Oceanography and Marine Research, Victoria Island, Lagos • Time: 12 noon Okorodudu-Fubara, M. T. 2012 2

Presentation Outline • • The Planned Project What the EIA Law Requires The EIA Process/Procedures Eko Atlantic EIA? EIA: The Lagos State “Preemptive” Measures Violations of EIA Statute Vital Laws Applicable to the Project The Way Forward Okorodudu-Fubara, M. T. 2012 3

The Planned Project • To develop V/I shoreline dredging appx. 90 million cubic metres of sand from marine shelf waters to reclaim 900 hectares of land for future development of a modern city. • Location: Phase 1 of the Eko Atlantic City Development Project will be situate at the Lagos Bar Beach, Victoria Island, Eti Osa Local Government Area, Lagos, Nigeria. Okorodudu-Fubara, M. T. 2012 4

What the EIA Law Requires • The Environmental Impact Assessment Act, 1992 establishes the regulatory framework for EIA process in the country. • The Act prohibits execution of private or public industrial or development, etc projects falling under the ‘mandatory list’ schedule to the statute without prior consideration of the environmental consequences of such a proposed action, in the form of an environmental impact assessment (EIA) and a Certificate in writing by FME signifying approval to commence. The Statute legally ‘forbids’ such erring projects. See Sections 2 -12; 41 generally • See S. 13 …cases where environmental assessment is required • Mandatory Study List 4, 9&17…Captures the Eko Atlantic City Project • It is an offence to fail to comply with the provisions of the Act …. See S. 61 Okorodudu-Fubara, M. T. 2012 5

FLOW CHART OF FME EIA PROCESS PROPOSAL S. 2 (Restriction on public or private project without prior consideration of the environmental impact Mandatory Study List not to be carried out without the Report of FME. . see Lists 4, 9&17 FEASIBILITY STUDY OR PROJECT PROPOSAL Note goal/objectives of the law; Precautionary Principle; Principle of Prevention; Sustainable Development. . . S. 1(a)-(c). Determine if the EIA Law/Regulations have been triggered FME EIA SECRETARIAT FME…charged with responsibility for ensuring due compliance with the EIA Act and overall responsibility of protecting and developing the Nigerian environment In exercise of its discretionary powers FME may refer any project likely to cause significant environmental effects that may not be mitigated/or where public concerns about the project warrant, to the FME Council for mediation or panel review Okorodudu-Fubara, M. T. 2012 6

INITIAL ENVIRONMENTAL EVALUATION S. 15 Whenever the FME decides that there is need for an EA on a project b 4 commencement of the project the EA process may include the following: (a) A screening or mandatory study and the preparation of a screening report/(b) mandatory assessment by a review panel/(c) design and implementation of a follow-up program 1. Mandatory: 2. Classified: 3. Excluded. . projects: 4. Others The Law categorizes Mandatory activities into three categories Category 1 activities require full and mandatory EIA; Category 2. . unless within environmentally sensitive area, full EIA is not required; Category 3 have beneficial impacts on the environment PRELIMINARY ASSESSMENT} {SCREENING S. 3 Identification, etc of significant environmental issue. See generally ss. 18 -20 on screening a project for potential environmental effects. See s. 4 Minimum content of EIA Okorodudu-Fubara, M. T. 2012 7

SCOPING} {NO EIA REQUIRED Scoping to determine the spatial and temporary dimension of environmental effects Carry out detailed baseline studies to determine the environmental condition prior to project implementation DRAFT EIA REPORT Prepare a detailed assessment report. See s. 4 for minimum contents of the EIA Report. PUBLIC HEARING} REVIEW PANEL} MEDIATION Review methods: In-house; Panel; Public; or Mediation. S. 7 provides for comments by certain groups (. . including “members of the public”) Within 15 working days of the receipt of the draft EIA report, FME concludes evaluation of the draft and determination of the review method which it communicates to the proponent in writing Okorodudu-Fubara, M. T. 2012 8

REVIEW REPORT Within one month of the review process, review comments are made available to the proponent Technically in the review stage the public participates only when FME’s chosen method of review guarantees public participation. PROPONENT The Proponent must address and proffer answers to review comments within 6 months to the responsible officer FME and the Proponent set conditions establishing follow-up program(mitigation, compliance and monitoring plan), a monitoring strategy and audit procedure. FINAL EIA REPORT Within one month Okorodudu-Fubara, M. T. 2012 9

(Not Approved) TECHNICAL COMMITTEE (Decision making committee) S. 9…FME decision on the effect of an EIA to be in writing A ‘no project’ decision is communicated to the proponent if the review comments are adverse and/or improperly addressed in the final report and the final EIA report is unsatisfactory. (Approved) ENVIRONMENTAL IMPACT STATEMENT (EIS) & CERTIFICATION Within one month of receipt of a final EIA report adjudged satisfactory, FME approves and issues the Environmental Impact Statement (EIS) SECTION 41 EIA Act 1992 “A certificate stating that an environmental assessment of a project has been completed, and signed by the FME that exercises a power or performs a duty or function referred to it in S. 35(c) of this in relation to the project, is in the absence to the contrary, proof of the matter stated in the certificate”. Note… there is no S. 35(c) under the statute. There are S. 35 (a)&(b). Okorodudu-Fubara, M. T. 2012 10

ENVIRONMENTAL IMPACT MONITORING } PROJECT IMPLEMENTATION COMMISSION AUDIT Okorodudu-Fubara, M. T. 2012 11

Eko Atlantic City EIA? • Is the Eko Atlantic City Project EIA Act, 1992 compliant? • This is the trillion dollar question! • There doesn't seem to be an unequivocal answer to this question. • All indications point to the fact that the answer is no. Okorodudu-Fubara, M. T. 2012 12

Eko Atlantic City EIA? Earlier information obtained… Dredging commenced on the site in 2009 A public meeting was held on January 21, 2011. “Eko Atlantic City EIA” was completed in April, 2011 and placed on display for comments from July 13 to August 10, 2011. • Record of meetings between SENL and different groups in Lagos State between 2009 and 2011… All these do not add up to the required “Federal EIA Act compliance. ” • • Okorodudu-Fubara, M. T. 2012 13

Eko Atlantic City EIA? • Reliable information obtained recently… • Source LS government: • “Federal Govt. has withdrawn the draft impact assessment viewed by Mr. Ako Amadi • Reason: “. . they had too many reservations about it” • Position now is: “. . there is no EIA at all at the moment. . ” Okorodudu-Fubara, M. T. 2012 14

EIA: The Lagos State “Preemptive” Measures • 2008…Lagos State House of Assembly passed Bill for a law to provide for regulation of waterfront infrastructure, sand dealing and dredging operations in the state. • The Lagos State Waterfront Infrastructure Development Law, 2009 (LAWID). • LAWID empowers the LS Ministry of Waterfront Infrastructure Development to grant permit for sand dredging or dealing within, around and on waterfronts and embankments. • Possibly LS passed the LAWID Law to facilitate commencement of the Eko Atlantic City Project and other coastline alteration projects in lieu of EIA certification from the FME. Okorodudu-Fubara, M. T. 2012 15

Violations of EIA Statute S. 61…Offence and Penalty “Any person who fails to comply with the provisions of this Act shall be guilty of an offence under this Act and on conviction in the case of an individual to N 100, 000 fine or to five years imprisonment and in the case of a firm or corporation to a fine of not less than N 50, 000 and not more than N 1, 000. ” S. I. No. 18 Reg. 20…’…. (2)Any corporate body which violates any of the provisions under these Regs shall be guilty of an offence and shall on conviction be liable to a fine not less than Five Million Naira (N 5, 000) and an additional fine of Fifty Thousand Naira (N 50, 000) for every day the offence subsists. (3) In addition to the penalty provided. . a person/body corporate found guilty shall be required to carry out remediation work. ’ • The Eko Atlantic Project is a clear violation of extant EIA Statute and Regulations • LAWID is not a substitute for the EIA Act, 1992. . s. 2 which prohibits listed public or private projects without prior consideration of the environmental effects • Eko Atlantic Project did not comply with the provisions of the EIA Act and the National Environmental (Coastal and Marine Area Protection) Regulations, 2011 S. I. No. 18…the latter prescribes ‘guidelines for development activities’/Reg. 10 and ‘requirements for permit’/Reg. 12. ‘It shall be an offence for a person or body corporate to (1) Contravene any of the stipulated procedures and guidelines as stated under regs. 10 & 12 of these Regs. (2) Carry out any act listed under the prohibited activities under reg. 6…’ Okorodudu-Fubara, M. T. 2012 16

Violations: Statutory Options (without prejudice to obvious drafting gaps) S. 52 Power to Prohibit Proponent S. 53 Injunction • ‘…(2) Where a review panel established to assess environmental effects. . Submits a report to FME indicating that the project is likely to cause any serious adverse environmental effects, FME may prohibit the proponent of the project from doing any act or thing that would commit the proponent to ensuring that the project is carried out in whole or in part until FME is satisfied that such effects have been mitigated. ’ • • ‘Where on the application of FME, it appears to court of competent jurisdiction that a prohibition made under… this Act in respect of a project has been, is about to be or is likely to be contravened, the court may issue an injunction ordering any person named in the application to refrain from doing any act or thing that would commit the proponent to ensuring that the project or any part thereof is carried out until…’ NOTE. . Prohibition is not indefinite. . S. 54(2) Okorodudu-Fubara, M. T. 2012 17

Some Vital Laws Applicable to the Project Att. Gen. Fed. V. Att. Gen. Abia & 35 ors (200) Sup. Ct. ‘. . the continental shelf is not part of the territory of a state contiguous to it. ’ Exclusive Economic Zone Act, 1978. S. 2… sovereign and exclusive rights with respect to the exploration and exploitation of the natural resources of the seabed, subsoil and superjacent waters of the exclusive Economic Zone shall vest in the Federal Republic of Nigeria and such rights shall be exercisable by the Federal Government…’ Environmental Impact Assessment Act, 1992. S. 61 Note definition of “Federal Lands”(a) lands that belong to the Federal Government of Nigeria in which Nigeria has a right thereon or has the power to dispose of and all waters on and air space above those lands: Territorial Waters Act, 2004. S. 1…. powers of the Federal Government to make, with respect to any matter, laws applying to any part of the territorial waters in Nigeria. ’ Water Resources Act, 2004. S. 1 ‘Vesting of rights and control in the Federal Government’ S. 5 ‘…. ensuring that the possible consequences of particular development proposals on the environment are properly investigated and considered before each proposal is approved. ’ S. 20 Note definition of “Watercourse” (i) The internal waters of Nigeria within the meaning of the Sea Fisheries Act, including the sea bed and subsoil below and the airspace above those waters; (ii) the territorial sea of Nigeria as determined in accordance with the Territorial Waters Act, including the sea bed and subsoil below and the airspace above the sea; (iii) any fishing zone of Nigeria prescribed under the Sea Fisheries Act; (iv) any exclusive economic zone that may be created by the Government of Nigeria, and The Constitution of the Federal Republic of Nigeria, 1999, Second Schedule Exclusive Legislative List, Item 64 ‘Water from such sources as may be declared by the National Assembly to be sources affecting more than one State. ’ National Environmental (Coastal and Marine Area Protection) Regulations, 2011, S. I No. 18 Regs. 6…land reclamation, bounding or disturbing the natural course of sea water are prohibited except. . ; Reclamation for commercial purposes such as shopping and housing complexes, hotels and entertainment activities shall not be permissible. . ’ Reg. 10 ‘. . guidelines for specified development activities…’ (v) The continental shelf, consisting of the sea bed and subsoil of the submarine areas that extend beyond the territorial sea throughout the natural prolongation of the land territory of Nigeria to the outer edge of the continental margin or to a distance of 200 nautical miles from the inner limits as may be prescribed pursuant to an Act; and (b) reserves, surrendered lands and any other lands that are set apart for the use and benefit of a class of Nigerians by the Federal Govt. of Nigeria and all waters on and airspace above those reserves or surrendered lands. ’ Okorodudu-Fubara, M. T. 2012 18

The Way Forward • Eko Atlantic City Project… A Fantastic Idea… But triggers of a wide range of extant critical Statutes and Regulations • The Proponents must be brought back to conformity and compliance in accordance with due process of law and executive /administrative processes. • This presentation sheds light on what the laws of the country stipulate, in general, and in particular the statutory framework for the EIA process, and if at all the Eko Atlantic City Project and its proponents are compliant. • The conclusion is that the individuals and firms involved in the Eko Atlantic City Project may be found guilty of offences under s. 61 EIA Act, 1992, and Reg. 20 National Environmental (Coastal and Marine Area Protection) Regulations, 2011. • It is recommended that an Executive/Administrative order of prohibition be placed on the proponents pending due compliance with all applicable laws relevant to the project. Okorodudu-Fubara, M. T. 2012 19

Way Forward - Options • Legal Action • Examine civil or criminal violations of extant laws triggered by the Eko Atlantic Project • Thorough investigation of individuals and firms involved and prosecute if found culpable • OR: Make a U-Turn to start all over simply impose “prohibition order” on the proponents and compel ‘total compliance with the EIA Act, 1992 & S. I. 18, 2011’ • No further action until an approval “Certificate” is issued by FME in accordance with S. 41 EIA Act. • Political Solution • Mediation by FG and LSG authorities • Reasonable resolution of the matter between FG and LSG • Must be against the backdrop of the applicable laws. . essentially the Constitution and all applicable Federal laws • Avoid reckless violation of extant laws. • Carry all stakeholders along in the overall public interest. Okorodudu-Fubara, M. T. 2012 20