Examining the Claims of Natural Resources Rights by the Niger Delta Peoples of Nigeria

Abstract: Under the Nigerian federation, the mineral resources hosting communities of the Niger-delta region of Nigeria have made concerted claims on mineral resources situated in their land territory based on their attachment with their ancestral land. A lot of heated debates have trailed these claims among academics as well as political writers and commentators. While proponents of state ownership, control and management of natural resources rely on the well acceptable principle of state sovereignty, local peoples and communities where natural resources are exploited and their sympathizers based their claim of rights over these resources from the provisions of some international and regional human rights instruments. This paper therefore is an attempt to x-ray these varying contentions from the standpoint of sovereignty of states and international human rights legal instruments. This paper opined that the exercise of sovereignty by states does not preclude her obligation to accord resource rights to her subnational or indigenous peoples. It calls for legal and policy reforms by the Nigerian government aimed at protecting the rights of indigenous peoples of the Niger Delta region of Nigeria over their natural resources.

Keywords: Natural resources ownership; international human rights; indigenous peoples; Niger-Delta peoples

In Nigerian federation, the major natural resources^³ are controlled by the government at the Centre to the disadvantage of the governments at the units known as states (Amah, 2011, p. 14)^⁴. This state of affairs has given rise to incessant agitations and unrest especially within the states and communities of the Niger-Delta region (Izah, 2018; Akujuru, 2014)^⁵ where most of these resources are produced (Abolurin, 2010; Adetunberu & Bello, 2019). These agitators for ‘resource control’ (Shebbs & Njoku, 2016)^⁶ within the Niger Delta region of Nigeria draw support from the growing argument that international human rights legal instruments have accorded communities and group of persons within a state territory right of ownership, control or management of natural resources situated in their traditional lands (Pereira & Gough, 2013; Brownlie, 2008).

The contention is that most of these international and regional legal instruments have made positive provisions conferring rights on individuals and groups in a political state, with a corresponding obligation on states to ensure their promotion and protections for the benefit of these peoples; some of these rights include rights over natural resources^⁷.

On the opposite side, the general principle of sovereignty of states gave independent political states the legal right to exercise sovereign powers over their natural resources free from external influence (Omorogbe & Oniemola, 2010)^⁸. How then may the principle of sovereignty of states be reconciled with the rights conferred on peoples within a state territory over natural resources located in their territory? Between the state and the inhabitants of natural resources producing communities, who should exercise over-riding rights of ownership, control and management of these natural resources? Who are ‘peoples’ and ‘indigenous peoples’ under these international human rights legal instruments, and does the different ethnic and linguistic communities of the Niger-Delta region of Nigeria, fit in with these categories of ‘peoples’ or ‘indigenous peoples’? These are the questions that this paper intends to resolve.

This research has adopted doctrinal method. The researchers have explored international human rights legal instruments. Further, they have utilized textbooks, journals, and other online materials from both legal and non-legal scholarships to realize results and arrive at persuasive conclusions.

3. State Sovereign Rights over Natural Resources and the Rights of “Peoples” over Natural Resources under International Human Rights Legal Instruments

The contestation over the legal control of earth resources has long been settled in a vast set of international legal regimes (Ingulstad & Lixinski, 2013; Pereira, 2012; Umezurike 2002)^⁹. The principle of permanent sovereignty which has evolved into a peremptory norm of international law favors state ownership and management of natural resources within her territory (Schrijver, 1997; Lee, 2009)^¹⁰.

The argument however is that while the principle of sovereignty of states regulate the relationship among states and operate in context of interstate allocation of resources, the rights of permanent sovereignty over natural resources, at the intrastate context inures to the benefit of group of peoples in a state thereby allocating natural resources rights to peoples within a political independent state (Hofbauer, 2009; Ronne, 2010; Hernandez, 2006). Secondly, it is also arguable that since international human rights legal instruments have granted certain basic rights to group of peoples within a political state in connection to natural resources; the state’s sovereign rights over her natural resources must be exercised subject to these group rights^¹¹.

Today, the understanding has grown to the notion that the rights of permanent sovereignty over natural resources conferred by the UN General Assembly Resolution^¹² is available to group of ‘peoples’, within a state, who may therefore lay claim on the rights (Schrijver, 1997, 174; Hernandez, 2006). Consequently, it is accepted that the rights of permanent sovereignty does not confer immunity on national government or absolve them from responsibility under international law or even relief them of their obligation under human rights norms especially in connection to natural resources.^¹³

A good number of conventions on human rights grant some rights in connection to natural resources on state citizens as well as communities hosting these resources. For instance, the Article 1 of both the ICCPR and ICESCR provide for the right of self-determination of peoples.^¹⁴ Article 2 of the ICESCR guarantees rights of peoples over their natural resources. Article 11 of the ICESCR provides the right of the peoples to adequate standard of living, food, clothing, housing and continuous improvement of their living conditions; Article 12 provides for right of the peoples to environmental and industrial hygiene while Article 25 guarantees inherent right of the peoples to the full enjoyment and free utilization of their natural wealth and resources^¹⁵.

A combined consideration of the provisions of different international human rights legal instruments providing rights of peoples in connection with their natural resources strongly suggests that the obligation on states to exercise natural resources rights under the Principle of Permanent Sovereignty must be carried out in a manner that is not detrimental to the local inhabitants of the territory where the exploitation is taking place (Gümplová, 2014, p. 93; Gupta & Lebel, 2010)^¹⁶.

3.1. Human Rights of Indigenous Peoples in connection to Natural Resources

As we mentioned earlier, international and regional human rights instruments that protect the rights of indigenous peoples confer some rights on indigenous peoples over the management of natural resources found in their territory. Much of these guaranteed and enforceable rights are found in the I.L.O Conventions^¹⁷ and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP)^¹⁸.

The ILO Convention 169 provides two essential rights for indigenous and tribal peoples in independent countries, which are:

Under the UNDRIP, the rights of indigenous peoples to self-determination^²¹ and autonomy^²², rights over their lands^²³, rights to security of their means of subsistence,^²⁴ rights to their traditional medicine^²⁵ and to their spiritual relationship with their ancestral lands^²⁶, rights to conservation and preservation of their environment^²⁷ and rights to their cultural heritage^²⁸,are guarantee.

Part of the consequences of globalization is the investment in capital intensive harvesting of nature endowed resources. This demands large expanse of land hitherto used by the indigenous community for farming purposes. The dispossession of indigenous peoples lands impact negatively on their subsistence, livelihood and survival. Thus, the transformation of indigenous peoples traditional land territory for modern economic development must therefore be embarked upon in a manner that will assuage the indigenous people to a satisfactory degree; it must be capable of sustaining the indigenous peoples’ lives and guarantee their economic, cultural and political sustenance. On the African continent, political leaders have neglected indigenous peoples through the instrumentalities of the machineries of government. They have divested the indigenous peoples of their lands, relegated them to the backgrounds by denying them access to political positions that will enable them champion their political, economic and cultural interest.

Who then are ‘indigenous peoples’ under these international human rights documents? Are the peoples of Niger-Delta of Nigeria entitled to these rights?

The expression ‘indigenous’ refers to community of peoples that trace their origin to common ancestors who from time immemorial had inhabited their present land territory before they became subjected to a superior political entity (Barnabas, 2019). ‘People’ on the other hand, refers to a group of people who claim common ancestry (Aukerman, 2000)^²⁹. “Peoples” include communities, national and ethnic minorities (Chiriboga, 2006). Thus, indigenous peoples may be referred to as community of people who though presently are not under external political domination, inherited their present land from common ancestry and have continued to identify themselves by their social and cultural life pattern to their ancestral lineage. These features of common ancestry and attachment to their ancestral lands is an essential qualification of a group to the rights under both the ILO Conventions and the UNDRIP (Coomans, 2003; Errico & Claeys, 2019; Bartlett & Madariaga-Vignudo, 2007).

International law while avoiding narrow definition of “indigenous peoples” sets down some basic qualification for a group of people to be considered as indigenous.^³⁰ These criteria include, self-labeling and attachment of a group to a common ancestral lineage who earlier inhabited their lands; unique culture; common means of sustenance; common language; common way of life and common political structure that are noticeably different from that of the rest of the state population.^³¹ The argument that all citizens of African states are possessive of indigenous identities, having all emerged from colonial experience, such that peoples should be restricted to the decolonized states of Africa and not to be extended to groups within the state is untenable (Enochong, 2002; Jeremie, 2010; Jeremie, 2013). The Report of the international work group for indigenous affairs (2005) recognized that part of the consequence of nationalization, included the disposition of ancestral lands previously belonging to the indigenous communities. These lands are their primary means of sustenance (World Bank, 2013).

Consequently, the true meaning and identity of “peoples” must be one associated with the peoples relationship with and use of their ancestral lands such that any large scale expropriation of the ancestral lands belonging to or of which the group has attachment to and which is likely to affect their access to their farmlands, fishponds or any other traditional occupation or means of sustenance connected with the land will amount to threat to their existence. The Human Rights Commission has held that Article 27 of the ICCPR protects land rights of indigenous peoples^³². The Commission has also insisted that Kenya government must by way of legislation and policies take proper action to ensure that indigenous communities in Kenya are consulted and resettled before they may be ousted from their traditional lands (Barnabas, 2019).

Rights over land by indigenous peoples also connote cultural, spiritual and other values intrinsically interwoven to their continual existence and survival as peoples. In Sandra Lovelace v Canada (1981)^³³ the Human Rights Commission reaffirmed the right of persons belonging to a community of people to engage in community with other members, in their cultural activities and in their traditional lands as a sacrosanct part of their identity.

The several ethnic^³⁴ and linguistic nationalities of the Niger Delta peoples fit in with the most practical meaning of indigenous peoples as it concern the consideration of their individual distinctive identities (Gitiri, 2015; Olupohunda, 2016). The indigenous peoples of the Niger-Delta of Nigeria face the same danger being faced by other indigenous peoples of the world. They have been disposed of their ancestral lands, deprived of their sources of economic livelihood, their territory are constantly under military occupation, deprived not only of their territorial but also economic and political self-determination. Their ancestral ties, traditional lifestyles, values and custom, cultural heritage all face extinction, same as their identity, sense of pride and traditional practices. Their collective rights to self-development, the entirety of their economic, social and cultural rights and their rights to freely dispose of their natural resources are been violated by the Nigerian state (The Niger Delta Indigenous Peoples Charter). It is worth reiterating that as far back as 1996, the HRC (1996)^³⁵ had directed the Nigerian government to immediately carry out legal reforms with a view to guaranteeing human rights protection in line with the provisions of the ICCPR (Ibid, para. 28) and in particular, to take appropriate legislative and policy steps to secure the rights of indigenous peoples and indigenous minorities in Nigeria (Ibid, para. 37). The Nigerian government up until the present day has not implemented these recommendations.

We have seen that though international law confers on states right over her natural resources. These rights must however be exercised subject to the rights of the indigenous peoples whose ancestral lands these resources are produced. The right to self-determination, the right to development as well as the right of the indigenous peoples to freely dispose of their natural resources are available to indigenous communities whose ancestral lands natural resources are exploited. The Niger Delta peoples of Nigeria are entitled to these rights.

We therefore call on the Nigerian government to fast track constitutional reforms aimed at providing and protecting the rights of indigenous communities of Nigeria to the natural resources located in their land. These will include the abrogation of those legislations and policies that deny the Niger Delta peoples of their rights over the natural resources produced in their land territories. It will also include making statutory guarantee and enforcement of these rights, accruable to the indigenous peoples of the Niger Delta of Nigeria. This will engender peace and sustainable development of the Niger Delta peoples of Nigeria.

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1 Senior Lecturer, PhD, Faculty of Law, Ebonyi State University, Abakaliki, Nigeria, Address: Address: Ishieke Market Ebonyi Local Government, 480211, Abakaliki, Nigeria, E-mail: amahibiam@gmail.com.

2 Rector, PhD, Akwa Ibom State Polytechnic, Ikot Osurua, Ikot Ekpene, Akwa Ikom State, Nigeria, Address: 225B Aba Road, 530102, Ikot Ekpene, Nigeria, Corresponding author: philipfaga@gmail.com.

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4 Section 44(3) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 as amended; see also section 4(2) and part 1 of the Second Schedule to the CFRN, the Petroleum Act 1969 Cap. P.10 Laws of the Federation of Nigeria 2010; section 3(1) Mineral Act Cap.M12, Laws of the Federation of Nigeria, 2010; section 2 of The Petroleum Industry Law of 2012 provides: “The entire property and control of all petroleum in, under or upon any lands within Nigeria, its territorial waters or which forms part of its continental shelf and the Exclusive Economic Zone, is vested in the government of the Federation”. See Attorney General Abia State v. Attorney General Federation. (no. 1) (2002)11 NWLR (Pt. 725) 689 SC.

5 The Niger Delta region is a marshy –swampy land surface covering over 70,000 square metres landmass. It is located at the south-south geopolitical region of Nigeria and comprises of 9 states of Nigeria; namely, Akwa Ibom, Bayelsa, Delta, Ondo, Edo, Cross Rivers, Imo, Abia, and Abia states. However, the principal part of it are the Akwa Ibom, Rivers, Cross Rivers, Delta, and Edo states all of which account for over 80% of Nigeria’s oil revenue. The Niger-Delta is popular with its richly endowed crude oil and gas deposits reservoir. It is considered as one of the best endowed deltas in natural resources in comparison to other oil producing nations. In addition to oil and gas, the Niger-Delta contains extensive dense rain forest, with abundant wild life, fertile agricultural lands and swamps, streams, ponds and rivers full of seafoods.

6 ‘Resource Control’ is an expression commonly associated with the demands of the indigenous peoples of the Niger Delta region of Nigeria, which principally produce the nation’s mineral resources, to have a greater control over the proceeds from oil produced in their area.

7 Some of these international legal instruments include; the International Covenant on Civil and Political Rights (ICCPR) 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966, The UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, 1992; the Indigenous and Tribal Population Convention 1957 (Convention 107) of the ILO, the Indigenous and Tribal Peoples Convention of 1989 (Convention 169) of the ILO and the UN Declaration on the Rights of Indigenous Peoples 2007. On the regional level, we have the African Charter on Human and Peoples Rights 1981(ACHPR).

8 See UNGA Resolution on Permanent Sovereignty over Natural Resources 1803 (XVII) of 1962, the UN Charter of Economic Rights and Duties of States, UNGA Res. 3281(xxix), (1974).

9 UNGA Resolution 1803 of 1962 in Article 1 provides that; “The right of the peoples and nations to the permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the wellbeing of the people of the state concerned”. See also Rio Declaration on Environment and Development of 1992, which also recognized nationalization as an integral part of the sovereignty of states. Further, Article 56 of the 1982 UN Convention on the Law of the Sea conferred on a state the sovereign authority over her nature endowed resources ‘for the purpose of exploring and exploiting, conserving and managing these resources. See the cases of Texaco v Libya (1977) 53 ILR 389, (1978) 17 LLM 2 and Kuwait v American Independent Oil Company (1982) 21 ILM 976.

10 It is said that the principle of permanent sovereignty has attained the same status with the prohibition of use of force as a peremptory norm such that it is binding on all states. See. Article 53 of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 115 UNTS 331 (entered into force 27 January 1980).

11 This later position is premised on the provisions of three international legal instruments; the Indigenous and Tribal Population Convention 1957 (Convention 107) of the ILO, the Indigenous and Tribal Peoples Convention of 1989 (Convention 169) of the ILO and the UN Declaration on the Rights of Indigenous Peoples 2007 and, at the regional level, the African Charter on Human and Peoples Rights, 1981.

13 See e.g. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedom, ETS NO. 9, as amended by Protocol no. 11 to the Convention for the Protection of Human Rights and Fundamental Freedom, ETS no. 155, 1^st Nov. 1998) article 1 herein recognize the right to property as a fundamental human rights.

14 E.g. Article 1(2) of the ICESCR states; “All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence”.

15 In the Fisheries Jurisdiction Cases (1974), the ICJ recognizes that under customary international law, as it had crystallized after the 1958 and 1960 Conferences on the Law of the Sea, a coastal State has the right to establish a 12-mile exclusive fishery zone and preferential rights of fishing in adjacent waters ‘to the extent of the special dependence of its people upon the fisheries in the seas around its coasts for their livelihood and economic development’. See, ICJ Reports 1974, Merits, 34, para. 79. See also 23, para. 55.

16 For example, Article 1 the ICCPR provides that in no case may peoples be deprived of their own means of subsistence while Article 47 of the ICESCR states ‘nothing in the present covenant may be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully their natural wealth and resources.’ The implication of extending the right of permanent sovereignty over natural resources to peoples within a state is that it could form the basis of a challenge to a government’s decision to authorize multinational companies to operate in the natural resource sector in a state’s territory against the will of the citizens in general or the host community in particular, Secondly government may also be bound to adopt measures that will benefit the people of the locality where the resources are exploited.

17 The Indigenous and Tribal Population Convention 1957 (No. 107) of the International Labour Organization (ILO); the Indigenous and Tribal Peoples Convention 1989 (Convention 169) of the International Labour Organization (ILO).

18 The United Nations Declaration on the Rights of Indigenous Peoples, (UNDRIP) adopted by the United Nations on September 13, 2007. (Whereas the ILO Conventions are legally binding international treaties the UNDRIP is a non-legally-binding resolution passed by the United Nations in 2007).

29 The UNESCO experts avoided the dispute over the definition of ‘peoples‘ by merely explaining the basic characteristics of peoples as a group of humans who commonly share the following features; history and tradition, race or ethnic identity, cultural homogeneity, linguistic unity, religious or ideological affinity, territorial connection, and common economic life. See, International meeting of experts on further study of the concept of the rights of peoples, convened by UNESCO held in Paris on 27-30 November 1989, SHS-89/VCONF.602/7, para. 23.

30 The ILO Convention (no. 169) Article 1(1)(b) of the Convention provides; peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

31 The most generally acceptable definition of indigenous peoples is the one given by Martinez Cobo. Cobo defines indigenous peoples thus; “Indigenous communities, peoples and nations are those which having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories or parts of them form at present non-dominant sectors of the society and are determined to preserve, develop and transmit to future generations their ancestral territories and their ethnic identity as the basis of their continued existence as peoples, in accordance with their own cultural pattern, social institutions, and legal systems”, (Cobo, 1983).

32 HRC, General Comment No 3: The Rights of Minorities (art 27) 26 April 1994, CCPR/C/21/Rev.1/Add.5, para. 7. See also the Commission’s decision in the case of Aerela and Nakkalajarvi v. Finland, (779/1997), Communication of 24 October 2001, CCPR/73/D/779/1997.

34 The Niger Delta houses a large number of different ethnic and linguistic groups, which includes, Andoni, Brass, Dioubu, Etche, Ijaw, Kalabari, Nembe, Ogoni, Okirika, ikwerres, orons, itsekiris, ukwanis, abribas, Ibibio, Efik, and other smaller minority groups, as well as some part of Ibo and Yoruba tribes. These different ethnic and linguistic groups are regarded as indigenous peoples. See International Crisis Group (2006).