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Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, colour, sex, national origin or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.
Environmental Justice emerged as a concept in the United States in the early 1980’s; its proponents generally view the environment as encompassing and seek to redress inequitable distributions of environmental burdens.
In Nigeria, foreign exchange earnings from crude oil sources account for the single most important source of Nigeria’s foreign exchange. Hence, since oil was discovered in the Niger Delta region of the country in commercial quantities in 1956, there have been increased activities in the oil sector in the areas of exploration and exploitation, refining, export and domestic distribution. While these oil activities have generated immense financial benefits for the country, they have also created serious health and environmental problems.
With the increase in the oil activities and its resultant consequences, it became clear that the common law remedies were not easily available to the victims of the pollution. This worked injustice on the victims. Further there was no comprehensive national policy and enforcement statute for the country’s environmental protection. It took the 1988 Koko toxic waste dump for the country to fashion out a national policy on the Environment with supporting statutory legislations.
However, even with the statutory legislation in place the problems of the victims were far from over. These victims hardly get any justice from the courts. This is because of the many impediments that comes with environmental litigation, the most troublesome being the doctrine of locus standi. The doctrine of locus standi is a common law doctrine that has found its way into our legal system. Locus standi is the existence of a right of an individual or group of individuals to bring an action before a court of law for adjudication.
This work seeks to examine the concept of environmental justice in Nigeria, what constitutes Environmental justice, its impediments, and to this extent, we will look at the doctrine of locus standi and its effect on Environmental justice. We will also look at other impediments to Environmental justice. We will also look at few foreign jurisdictions to find out how the concept of environmental justice has been applied. Finally, we will proffer solutions on how best to achieve environmental justice.
This work is divided into five chapters. Chapter one deals with the general introduction. Chapter two deals with the issue of locus standi in Nigeria. Chapter three deals with the challenges of Environmental justice. Chapter four deals with Environmental justice in foreign jurisdictions. Finally, chapter five deal with conclusion and recommendation.
5.0 Conclusion and Recommendations
5.1 Recommendations
Having looked at the various challenges brought about by a strict construction of the doctrine of locus standi in achieving an environmental justice and also the position of the doctrine in other jurisdictions, it is now time to proffer solutions.
Most of our laws on procedure or substantive are outdated and should be amended. The law is not developing and new principles of law are not being enunciated because of the outdated and obsolete laws still regulating and directing our conduct.
There is an overwhelming need for a reform of the judicial process in the country in line with the global concern for human rights protection. This is necessary because the judiciary plays a pivotal role in ensuring that individuals have access to justice. It is suggested that the starting point of such reform should be a review of the relevant court rules that inhibit access to justice. In this connection, the Federal High Court rules which preclude a large proportion of the citizens from enforcing their environmental rights through exorbitant filing fees and procedures must be reviewed and the filing fees reduced. This will invariably lead to a marked reduction in the current agitations and crisis in the Niger Delta since it will enhance access to courts, and affords aggrieved persons the opportunity of ventilating their views and claims in a court of law.
There is a lot of merit in the public interest litigation device and an attitude of judicial activism by the judiciary in environmental matters, not only because administrative and legislative review of administrative action is weak and judicial review dependant on the accident of litigation, but also because of the grave consequences of delinquent environmental management in the socio-economic life of a developing nation like Nigeria. There is no doubt that public interest litigation is a veritable tool for a revolutionary change in Nigeria. This legal concept allows individuals or group of persons to approach the judiciary to seek redress for any form of human right violation and constitutional infraction. Although litigation is not the only means of seeking redress, it is however a catalyst for change in the sense that its outcome affects a larger number within the society as opposed to an individual. In the context of Nigeria, the major challenge facing the development of Public Interest Litigation as pointed out is the issue of locus standi. It is high time our courts adopt a more liberal interpretation to the issue of locus standi as rightly noted by Lord Diplock in the English House of Lords as follows:
There will be a grave lacuna in our system of public law if a pressure group, like the federation, of even a single spirited public tax payer, were prevented by out-dated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get unlawful condition stopped.
In India, the most important procedural innovation for environmental jurisprudence has been the relaxation of traditional process of standing in the Court and introducing the concept of Public Interest Litigation (PIL). Previously, there was no provision in the environmental legal framework for allowing the third party to seek the help of the Court if the party was not directly affected by environmental problems. Hence, the biggest hurdle in the path of litigation for environmental justice had been the traditional concept of locusstandi. Earlier when the third party approached the appellate Court for seeking relief against an injury they did not incur directly, the action was not maintainable as the appellate Court focused its attention on the identity of the petitioner rather than the subject of petition. But now the Court’s approach has changed and it has been ruled that any member of the public having sufficient interest, may be allowed to initiate the legal process in order to assert diffused and meta-individual rights. Generally, in environmental litigation, the parties affected by pollution are a large, diffused and unidentified mass of people. Therefore, the question arises as to who ought to bring such cases to the Court’s notice where no personal injury, in particular, has been noticed.
In such situations, the Court has emphasised that any member of the public having sufficient interest may be allowed to initiate the legal process in order to assert diffused and meta-individual rights in environmental problems. The positive impact of Court’s approach to environmental litigations through third party representation has been such that it has dramatically transformed the form and substance of environmental jurisprudence in India. This development needs to be adopted by the Nigerian courts in order to liberalize the doctrine of locus standi.
In Abraham Adesanya v President of the Federal Republic of Nigeria , it can be noticed that despite the liberal and progressive views expressed in that case, it ended in a conservative note. Thus there is also a need to revisit the Supreme Court decision in that case.
There are highly notable pronouncements in the Abraham Adesanya’s case, in the leading judgment of Bello J.S.C (as he then was), which do not seem to be in complete alignment with the final orders and conclusion of the supreme court in that case but which are nevertheless very useful guides to a desired new approach to the concept of Locus Standi in Nigerian law.
They are as follows:
- With these observations in mind, I take significant cognizance of the fact that Nigeria is a developing country with multi ethnic society and a written federal constitution, where rumour mongering is the past time of the market places and the construction sites. To deny any member of such a society who is aware or who believes or is led to believe, that there has been an infraction of any of the provisions of our constitution, or that any law passed by any of our Legislative Houses, whether Federal or State is unconstitutional, access to a court of law to air this grievances on the flimsy excuse of lack of sufficient interest is to provide a ready recipe for organized disenchantment with the judicial process.
- In Nigerian context, it is better to allow a party to go to court, and be heard than to refuse him access to our courts. Non-access, to my mind, will stimulate the free for all in the media as which law is constitutional and which law is not. In any case, our courts have inherent powers to deal with vexatious litigants or frivolous claims. To re-echo the works of a learned Hand, if we are to keep our democracy there must be one commandment – thou shall not ration justice.
- To my mind, it should be possible for a person who is convinced that there is an infraction of the provisions of Sections I and 4 of the Constitution which I have enumerated above, to be able to go to court and ask for the appropriate declaration and consequential relief required. In my view, any person, whether he is a citizen of Nigeria or not, who is resident in Nigeria or who is subject to laws in force in Nigeria, has an obligation to see to it that he is governed by a law which is consistent with the provision of the Nigeria Constitution. Indeed, it is his civil right to see that this is so. This is because any law that is inconsistent with the provisions of the Constitution is to the extent of the inconsistency, null and void by virtue of the provisions of Sections 1 and 4 to which I have referred to earlier.
- However, except in the extreme or obvious case of abuse of courts how then can one conceive of a judicial process where access to the courts, by persons with grievances is based solely on the court’s own value judgment in a multi-ethnic country where more than two hundred languages are spoken? I would rather err on the side of access than on that of restriction.
With these pronouncements, it will be obvious that there will be no reason to borrow ideas from other countries on how to limit the application of locus standi in Nigeria.
It is a trite knowledge that judges interpret or expound and not make the law. In spite of this, judges can, and do, greatly shape the essence of the law in their interpretative role. The great Lord Denning confirmed it when he said
In theory the judges do not make law, they merely expound it. But as no one knows what the law is until the judges expound it, it follows that they make it
The goal of the judiciary should be aimed at not just interpreting the law, but in doing so with a view to achieving social justice. According to Justice Krishana Iyer one of India’s most activist judges;
After all, social justice is achieved not by lawlessness process, but legally tuned affirmative action, activist justicing and benign interpretation within the parameters of Corpus Juris.
With respect to the Nigerian environment and its protection against the degrading effects of oil pollution, it is our hope that the Nigerian judiciary will strive to achieve social justice as they interpret, expound and expand the law on environmental protection.
The Nigerian judiciary should endeavour to integrate both the procedural and substantive aspects of environmental protection driven by the conviction that a clean and healthy environment is an intrinsic component of human rights.
The National Assembly should, pursuant to their power under section 4(1) of the1999 Constitution, establish special national environmental courts composed of judges highly qualified in environmental law.
The courts should apply innovative approaches to dispute resolution with respect to environmental protection cases. Some of the approaches should include prior consultation, fact-finding, commissions of inquiry, conciliation, mediation, noncompliance procedures, arbitration and judicial settlement of disputes.
5.2 Conclusion
The doctrine of locus standi under the Nigerian legal jurisprudence and the hitherto stringent interpretation by the courts has greatly hindered the accessibility of the Nigerian courts to the citizens. This particular subject has generated a lot of legal analyses. Under Adesanya v the President of Nigeria the apex court stated that in order to possess locus standi, a citizen must prove special interest in the subject matter as well as special damages resulting therefrom. However, in Akilu v Fawehinmi the apex court widened the scope of the doctrine beyond the limited scope enumerated in Adesanya. This is actually a welcome development.
Usually, the reason given for the strict interpretation of locus standi is that if the doctrine is relaxed it will open up floodgates of litigation. Personally, I am of the opinion that the interest should be on the rule of law and justice and not whether the floodgate will be opened or not.
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