THE CREDIBILITY OF ADR IN SETTLING ENVIRONMENTAL DISPUTES: NIGERIA AS A CASE STUDY.

BY TOLULOPE HICKS

1.0. INTRODUCTION

Imagine waking up on a Thursday morning looking for what to eat, you go to the first shop vendor and realise that she is not there, you move on to go to the second, third and fourth vendors but no one seems to be around. Then you remember that, it is a Thursday morning and since it is Nigeria, we observe what is called “environmental” or take for instance, every last Saturday of the month where residents partake in environmental sanitation. To me, I believe that this “environmental sanitation” days are just days set aside to probably delay vendors from beginning their sales in time and to remind residents that there is a need to keep a clean environment. As they are just superficial activities incorporated by the government on citizens, it sidelines the major issues, conflicts and matters that borders on the environment thus resulting to environmental disputes.

This article examines the effectiveness of Alternative Dispute Resolution (ADR) as a non-judicial mechanism in settling environmental disputes. Originally, disputes whether civil, commercial, environmental or otherwise are resolved through traditional court processes. However, due to the shortcomings of the litigation process, such as delay, costs and other technicalities, ADR evolved.

2.0. ENVIRONMENTAL DISPUTES AND ADR

ADR involves mechanisms curated to supplement the traditional court proceedings by creating a faster and more effective dispute resolution process. It is a collective term which illustrates how people can resolve conflicts, with the aid of a third party outside the courtroom. On the other hand, environmental law is a dynamic field of law that relates to the consequences of human activities on the ecosystem. It serves asa framework for attending to all problems caused as a result of pollution, climate change and misuse of natural resources. Environmental disputes can be difficult to settle due to its universal effect on individual as well as conflicting community interests. Nevertheless, the process and mechanism of ADR deals with it in a less bothersome and systematic manner.

In Nigeria, those who oversee ADR processes are trained and certified chartered mediators and arbitrators. One may ask, why do you think ADR will be effective in resolving environmental disputes in Nigeria? This is because in Nigeria, particularly the Niger Delta Region, victims of oil spillage/exploitation have become frustrated by the tedious litigation process and havethereby resorted to violence and other illegal means to seek redress. But if ADR, with its impact and effectiveness, is introduced in this region, the reverse will be the case. Arbitration, for example, which is a mechanism of alternative dispute resolution, has been very effective in the settlement of environmental disputes. Arbitration involves one or more neutral third parties that are agreed to by the disputing parties and whose decision is binding. For example, in January 1980, the Funiwa-5 oil well blew out in Rivers and the community claimed compensation from the oil company who agreed to pay a lesser price than that which was stated by the community. The federal government then intervened and played the role of an arbitrator in the discourse which both parties agreed to.

Asides arbitration, there is also negotiation. Negotiationinvolves a dialogue or discussion which aims at reaching a consensus or compromise without the aid of third parties. The Environmental Safety Guideline for Petroleum Industries in Nigeria 2002 encourages oil companies to negotiate damages to be awarded to victim communities in settlement of pollution cases rather than litigation. An expert may also be involved in cases where damages and the appropriate compensation, cannot be easily ascertained. As noted by Ehusani, ADR is potentially useful in resolving some of the environmental disputes bordering on payment of fair and adequate compensation of land acquisition, Environmental Impact Statement (EIS), damaged ecosystem, creeks, ponds and water courses arising from oil exploration activities.

Mediation is also accepted in the settlement of disputes relating to development projects as enshrined in sections 31 to 35 of the Environmental Impact Assessment Act. Furthermore, section 11 (1) of the Petroleum Act and Section 17(6) of the Oil Pipeline Act largely recognizes the use of ADR in resolving environmental disputes. There are also Nigerian cases where ADR has been adopted to settle disputes. An example is the case of Agip Oil Co. Ltd v. Kemmer and ors, where the Federal High Court, in affirming the relevance of arbitration in the settlement of environmental pollution related disputes, appointed an arbitrator to settle the dispute between the parties. Another case that lays hold to the credibility of ADR is that of Jabita v. Onikoyi, where the judge directed the parties to adopt ADRinstead of litigation as it was a better means of resolving their disputes.

In Nigeria, ADR is preferred in settling environmental issues because of its advantages such as speed, cost effectiveness, the equality of bargaining power among others. In the aspect of speed, the issue of pending cases in court for more than ten years is eliminated. Therefore, affected communities will not have to undergo devastation, frustration and economic stress caused as a result of delay in the dispensation of justice. ADR is cost effective as it may not be as expensive as litigation and since the victim communities are usually people living in poverty who cannot afford a formal legal system, ADR is their only messiah as it is win-win for them.

3.0. CONCLUSION

In examining the increased popularity of Alternative Dispute Resolution in Nigeria and the world, one will affirm that its use in settling environmental disputes is indeed credible. Therefore, it is salient for one to have an in-depth knowledge of arbitration and other ADR mechanisms.