As has been outlined in previous chapters, the current and highly imperfect approach to remediation relies on reactive, tactical and piecemeal action by individual operators.
Most sites receive no remediation at all, and best practice techniques are rarely used. Even where remediation takes place, the focus is almost exclusively on physical clean-up rather than on the human impacts or the environmental or economic consequences of pollution incidents. In general, the assessment of pollution is highly flawed; systematically underestimating the scale and scope of spillages, and remedial activity tends to be concentrated solely on the immediate area of any leak. Downstream communities rarely receive any help, despite suffering secondary pollution. Remediation rarely, if ever, addresses the full spectrum of pollution, with little action being taken on mitigating the damage caused by gas flaring or other forms of effluent discharge.
The implications of this analysis are clear in the context of the global climate crisis: more of the same will not be sufficient to address the legacy of 60 years of oil pollution, which has had a devastating impact not only on the environment in Bayelsa and throughout the Niger Delta, but also on carbon emissions worldwide. As a result, a paradigm shift to a new comprehensive approach to recovery is required to help remedy the impact of pollution. A Bayelsa recovery plan would both build the foundations for Nigeria’s low-carbon, post-oil future and focus efforts on improving the lives and livelihoods of people in Bayelsa. Such a plan would consider all forms of pollution, use best practice techniques to assess and develop tailored solutions, and integrate sustainable approaches to physical and other dimensions of remediation.
A Comprehensive Bayelsa Clean up and Recovery Plan.
Develop and implement a multi-dimensional multi-year plan, informed by best practice, to address the main effects of hydrocarbon pollution. Elements of the plan should include:
The new paradigm of pollution remediation will need to be rooted in a fundamentally different approach to the current physical remediation of hydrocarbon pollution.
The Commission has spoken with numerous experts on oil pollution and extensively reviewed the approaches used both in Nigeria and across the oil-producing world. In addition, it has consulted the guidance issued by bodies such as the International Petroleum Industry Environmental Conservation Association (IPIECA). The effects of pollution and the most effective avenues to address them will, among other things, depend heavily on the geology and hydrology of individual spill sites and the broader affected areas. For instance, oil may soak far deeper into the soil during onshore spills than it will in incidents in intertidal zones, where it often becomes trapped in a thinner layer of mud much closer to the surface.
The differing characteristics of spill-affected areas have profound consequences for how pollution should best be tackled. It may mean that in some cases, the best strategy will, unfortunately, be to leave spilled oil in place. For example, in some tidal zones, attempting to remove oil that is locked in mud may simply exacerbate the pollution. In areas like these, remediation will need to focus on managing the ongoing presence of contaminants, rather than trying to remove them.
All of this suggests that highly bespoke measures will be required, as there cannot be a ‘one size fits all’ approach to remediation. A clean-up approach based on methodology developed from an international best practice tool like the Shoreline Clean-up Assessment Technique (SCAT) may provide the best foundation for a programme of physical remediation.
All communities that have either directly or indirectly been affected by hydrocarbon pollution, including downstream communities, should be subject to an initial survey and SCAT assessment. Our initial assessment suggests that this would require about 23 percent of the state, amounting to an area of over 252,900 km2, to be assessed. This is an area about 250 times larger than that covered by the Bodo remediation. On the basis of this estimate, a highly tailored remediation plan should be formulated for all affected locations. The plans should then be executed on the fastest possible timetable, with a target for all remediation to be completed within 12 years.
To support this ambitious approach, there will need to be significant investment in both people and remediation centres. While the exact specifications of the programme will require further detailed work, we believe that a physical remediation programme will require a workforce significantly larger than that seen in Bodo (Rivers State), involving perhaps as many as 25,000-63,000 skilled workers.421
To support this workforce, we believe that a minimum of two remediation centres will need to be built. At least one of these should be mobile, perhaps located on a shallow draft floating platform to allow access to hard-to-reach sites in riverine communities. The SCAT process should be complemented by strong and sustained communications and engagement with affected communities to help maintain local support and manage expectations. It will take a minimum of two years to clean polluted areas identified in the SCAT process, followed by replanting and monitoring. This process is based on the five-year programme to clean 1,000 hectares in Bodo.
A large-scale remediation effort will also need to be accompanied by concerted action on artisanal refining. As outlined in previous chapters, artisanal refining and bunkering contribute significantly to pollution and pose an ongoing threat to clean-up activities. To minimise their impact, initiatives to introduce modular refineries and create better alternative economic opportunities for those involved in illegal refining should be combined with measures by oil operators to reduce the risk of pipeline breaches. These measures could include the installation of remote monitoring and shutting off or caging of pipelines along with enhanced regulatory enforcement. Critically, the metering of oil volumes that IOCs have pumped should be moved from oil terminals to either wellheads or nearby flow stations. This would, at a stroke, transform the IOCs’ incentives to invest in pipeline security and integrity.422 All these measures will be discussed in more detail later in this chapter and in Chapter Five.
Physical remediation will be the most expensive element of the overall recovery plan. Based on international benchmarks and expert calculations, we estimate that the total cost of establishing the necessary capacity for physical remediation and restoration and operating it for a 12-year period could be as much as US $10.5 billion.423
It should be recalled that unlicensed refining has been flagged as one of the significant causes of pollution in the Niger Delta, and in Bayelsa in particular. Among the suggestions that have been made for tackling this problem is that the Federal Government should harness the skills and energy of youth in the Niger Delta by granting them licences within a regulatory framework to operate modular or artisanal refineries. Surprisingly the PIA is silent on this issue: although it sets out sanctions to punish those engaging in unlicensed refining, it does not address the licensing or regulation of modular refineries.424
Simply removing or neutralising contaminants is not, on its own, enough to remediate the damage done by hydrocarbon pollution. As Chapter Two outlined, the Niger Delta has lost over 40 percent of its mangrove forests since oil production began.425 This depletion has exacerbated local communities’ exposure to a wide range of environmental risks, since mangroves provide natural beneficial functions such as flood mitigation, storm protection and erosion control. In addition, the loss of trees has also affected the livelihoods of households that depend on natural resources, since mangroves are an important source of fuelwood as well as breeding and nursery sites for many fish species. Populations of many important animal species have dropped significantly with the loss of mangroves. Therefore, a best practice remediation programme should also include initiatives to aid environmental recovery.426
International experience suggests that the key to accelerating environmental recovery is to replant mangrove forests. These forests act as a cornerstone for entire ecosystems by providing a habitat for countless species as well as anchoring contaminated sediment. The process of planting and maintaining mangroves also has considerable job creation potential. Restoration, however, needs to be carefully managed, with specialist mangrove nurseries overseeing the growing of saplings and their effective transplantation with sufficient uncontaminated soil to allow them to establish themselves. The stewardship of the recovery programme by skilled professionals would make a large difference to its overall impact.427
In Bayelsa, the Commission proposes that investment should be undertaken in several specialist mangrove nurseries, ideally connected to a university or research facility, to develop and deliver an extensive replanting programme to complement the physical remediation being undertaken. This should be accompanied by training opportunities for local communities, as a labour-intensive mangrove replanting programme could provide an important source of livelihood generation and diversification.
The planting programme should be initiated through a sequence of pilots to test out the right approach in different areas before full-scale planting commences. Those delivering the planting programmes should work with experienced partners, possibly the IUCN, to ensure the maximum overall impact.
Initial estimates suggest that such a programme, if delivered over a 12-year period, could cost approximately US $176 million.428
As was outlined in Chapter Two, exposure to hydrocarbon pollution at the levels present in Bayelsa is associated with a range of serious chronic illnesses. Reflecting the lessons of numerous pollution and radiological incidents around the globe, as well as guidelines published by the WHO and other bodies on the management of chronic diseases caused by environmental factors, the public health response to the oil contamination crisis in the state should be multifaceted with a phased implementation over time.
The initial measures in every community should be focused on emergency steps to map sources of contamination, provide clean sources of water and, if necessary, food, along with steps to deal with any acute conditions arising from exposure to toxic contaminants. As a matter of urgency, soil, water and food samples from all potentially affected communities should be tested to identify potentially contaminated sources of drinking water and nutrition. Priority should be given to testing wells and creeks supplying fish and other marine sources of food to communities. Air samples should also be taken. Action should not just be limited to communities that have been directly affected, but also encompass those that are indirectly impacted. In the highest risk communities, blood samples should also be taken.
The local contaminants assessed should be based on the full range of internationally recognised toxins rather than the restricted EGASPIN list, and aligned with globally recognised standards for harm rather than EGASPIN’s higher ‘intervention values’. In communities where testing shows potentially harmful levels of contaminants, action should immediately be taken to provide alternative sources of drinking water and sustenance. This mapping exercise will also allow for health interventions to be informed by a risk-based approach, prioritising the most vulnerable communities first.
Best practice suggests that this testing should also be accompanied in serious cases with immediate treatment to flush toxic compounds from the system and limit their re-absorption.
Over the longer term, the health element of the Recovery Programme should be based on a regime of free regular testing and action to protect and treat high risk groups. A monitoring and testing regime should be established so that all members of directly and indirectly affected communities are examined and checked on an annual basis to identify early markers of potential health conditions. People showing potential disease markers should be subject to additional monitoring and potential early treatment, as should members of high risk and vulnerable groups such as children, the elderly and expectant mothers. For these high-risk groups, effective preventative measures should be applied where possible. Where health conditions do materialise, treatment should be provided on an ongoing basis.
This regime of testing, treatment and risk-based preventive measures should be complemented by a sustained campaign of health education and communication to help change behaviours in affected communities to reduce exposure to contaminants.
International evidence suggests that the risks posed by high levels of sustained exposure to hydrocarbon contamination can persist for many years after exposure ends. A testing and treatment regime would need to be kept in place for between 20-30 years and be succeeded by a residual programme that may need to be maintained in perpetuity, especially if a measurable level of contaminants remain in the local environment.429
This coordinated series of measures will require a significant investment in Bayelsa’s healthcare system, as well as ongoing financing to pay the year-on-year running costs. There are currently only two hospitals of any scale in the entire state.430 Most healthcare is provided through a network of 168 primary healthcare clinics.431 As coverage is limited, most communities do not have a clinic and inhabitants may be forced to rely on centres in other, often distant, communities.432 For less accessible riverine communities deep in the Niger Delta, distance from health facilities may create a significant barrier to accessing appropriate levels of adequate care. For instance, residents of Ewoama in Brass LGA have to cross the often-dangerous Brass River to access functioning health clinics.433
Not only are there far too few clinics, but the ones that exist are chronically understaffed. According to one study, only 18 percent of clinics have a nurse attached to them and only 6 percent have a doctor.434 They are also often inadequately equipped and dilapidated. As a result, they are frequently forced to shut or operate at highly reduced capacity. Another study found numerous instances of clinics or cottage hospitals that were either closed or offering a highly reduced service.435
Delivering an effective programme of preventative screening and treatment will require a transformation in Bayelsa’s healthcare system. Significant funds will need to be invested in repairing and upgrading the existing network of clinics. A number of new clinics will also need to be built. To complement these, the Commission believes that investments will also be needed in a number of mobile clinics to serve remote communities. Clinics based on shallow draft boats – loosely modelled on mobile facilities used in South Africa – will be critically important for providing services to hard-to-access communities.
These investments should also be complemented by increased annual funding to support the training and employment of qualified medical staff, expanded drugs and treatment budgets, and an ongoing testing regime. As these expenditures cannot realistically be supported through the current health insurance system, they will require additional external funding through the recovery programme.
Similarly, the Bayelsa State Health Insurance Scheme (BHIS) covers only 5 percent of the population and does not therefore offer an appropriate vehicle for accessing the testing and treatment programme.436 We would suggest that, at a minimum, people living in communities designated as directly or indirectly affected by hydrocarbon pollution under the SCAT methodology should be offered free access to healthcare. Given the difficulties in administering such care while maintaining the BHIS system in parallel, it may be more efficient to enrol all citizens in the BHIS regardless of their ability to pay or offer all Bayelsans free healthcare through the recovery programme. The Bayelsa State Government’s commitment to universal health coverage for its population creates a conducive operating environment within which IOC coordinated investment in improving the health of local people affected by the negative health impacts of oil and gas production would be welcomed. Although more work is required to develop the details of a health plan with regular targeted health screening, initial estimates suggest that it may require US $41.6-47.6m in investment and an additional US $9.55-20.65m a year to run, resulting in a projected cost over a 12 year period of roughly US $247.8 m plus the initial outlay of US $42-48m.437
Chapter Two outlined the immediate and long-term economic damage of hydrocarbon pollution. Immediate drops in income – and sometimes rises in prices – are often accompanied by the ongoing loss of livelihoods that fuels food insecurity, deepens poverty and frays the fabric of communities themselves, with the results being increased conflict, the erosion of traditional community bonds and, in some cases, increased migration.
These kinds of impacts require a dual response that helps deal with the immediate loss of income caused by pollution incidents and provides access to alternative livelihoods and sources of growth for impacted communities over the longer term, especially where the effects of pollution are long lasting.
Short-term income supplement programmes, perhaps based on models seen in India and a growing number of African countries where the government provides time-limited paid work opportunities for people in affected communities, should be established. These public employment opportunities could include those associated with the physical remediation programme, particularly if affected communities are offered opportunities to train to international standards in pollution management. Additionally, a public works programme could support the conservation or enhancement of critical ecosystems, such as wetlands and forests, as South Africa does.438 In this way, short-term income generation strategies would also lay the foundations for longer-term productivity and resilience through nature-based solutions to soil formation, flood protection and pest control, which are typically much cheaper than ‘grey’ infrastructure or commercial products. As outlined above, such programmes should complement initiatives to ensure communities have access to clean water and safe supplies of food.
Longer term, a portfolio of programmes should be developed to enable households to generate new sources of income and develop sustainable alternative livelihoods, lessening their dependence on pollution-affected activities associated with oil and gas production. Bayelsa’s wetlands, forests and agricultural land, if cleaned up and restored, could provide important sources of livelihoods, particularly sustainable harvesting of fish and timber stocks, and both subsistence and commercial agriculture, against the backdrop of what will need to become Nigeria’s necessary transition to a post-oil and gas future. Investing now in a more ambitious and varied range of economic opportunities could also help address some of the root causes of conflict between and within communities, and also potentially help divert people from activities like artisanal refining that also cause significant environmental damage and which, along with gas flaring by IOCs, contribute to increased carbon emissions.
Communities should be supported to develop alternative sources of income through activities such as agriculture, agroforestry and aquaculture as regenerative practices critical to supporting recovery and restoration from oil-related pollution, the green recovery, and climate change. Bayelsa’s recovery plan should also contribute to the creation of a ‘post-oil’ low carbon future in Nigeria. Support for the processing and refining of agricultural products will also be part of the recovery plan by enabling communities, where possible, to move up the value chain to generate more cash income and better jobs.
And in view of the deleterious impact of oil on the livelihoods of the people of Bayelsa State, an ambitious economic recovery plan geared towards positioning the people of the state to survive in a post-oil low carbon future is needed. This requires a strategic, deliberate and far-reaching plan to be put in place. This plan should go far beyond the level of communities’ trusts managed by companies to collaboratively harness the resources of the oil companies, the federal, state, and local governments as well.
Supporting the management and scaling up of sustainable agricultural practices can provide a boost to rural economies and create jobs. It can also help to restore and protect the environment and contribute to long-term development that will also improve food security.
Training, where possible linked to concrete job opportunities, should be provided to young people to broaden their options. Activities such as the scheme for training pilots that Partnership Initiatives for the Niger Delta (PIND)439 have established to provide skills to marginalised youth should be expanded. Investments should also be made in expanding training and capacity in potential future growth sectors, including IT and renewable energy. In general, Bayelsa will need to begin to identify and invest in engines of shared prosperity and job creation to power the economy in a post-oil world. Investment in economic remediation and development should help the state and its people to make this transition.
Similarly, investment in modular refineries should be supported to ensure communities have access to affordable fuel and to provide alternative livelihoods for those currently involved in artisanal refining. These should be accompanied by investment in renewable energy. Communities will need access to energy to power the growth of new sectors and alternative livelihoods that will be at the heart both of effective economic remediation and the embrace of a low carbon future.
Micro-credit facilities should be provided to enable people in affected areas to develop new businesses. There are a range of other interventions, including the establishment of innovation hubs, that should also be considered.
However, a careful balance will need to be struck throughout to ensure that adverse incentives are not created. The Commission has heard evidence that competition for compensation funds and contracts related to pipeline security have, on occasions, sharpened incentives for sabotage.
The mix of appropriate interventions and support will, of course, vary from community to community depending on the exact nature of the pollution suffered and the effect that this has had on their economic dynamics. The aim should be for every affected community to receive immediate short-term assistance and a flexible portfolio of longer-term support to help create strong alternative engines of employment and prosperity. Help should be calibrated to the level of harm, but should also be available to all directly and indirectly affected communities.
The flexible and varied nature of the interventions required make it difficult to estimate the exact costs of such support. However, on the basis of the number of spill sites that exist across Bayelsa and the proportion of the population that may be affected, the Commission believes that funding these programmes to ensure that all historically affected communities receive at least some help will cost roughly US $1 billion per year.
Oil pollution has not just degraded the environment, the economy and people’s health. It has also eroded the ties that bind communities together.
Unfortunately, there is no quick fix for the damage pollution has caused to social cohesion in communities across the Niger Delta. Part of the solution requires taking a different approach to community engagement that is radically different from the GMOU model. This will be outlined in Chapter Five.
However, while a new approach is put in place, there are a number of steps that can and should be taken to help begin to repair some of the rifts within and between communities, or at least to make sure that the remediation process does not exacerbate them.
Firstly, as previously emphasised, downstream communities as well as those directly affected by spills, should be included in any remediation efforts.
Secondly, strong mechanisms should be put in place to ensure that communities have complete visibility over funds being spent and how they are being distributed, so that all members of affected communities can have clarity. Fair allocation mechanisms, with clear grievance and appeal mechanisms, should be put in place. These mechanisms should be accompanied by strong and regular communication with communities to keep them informed about the progress of the recovery programme and to help manage expectations.
Thirdly, the Commission believes that in the short-term, there may be a role for state and local governments in helping to mediate and support constructive dialogue within communities. However, the PIA has failed to address the better integration of states and local governments representing local people in the execution of projects tailored to develop host communities.
Funds to support these outreach approaches will need to be included in the costing of the recovery plan.
Set up a Bayelsa Recovery Fund.
Establish a c. US $12bn fund to finance the implementation of the Bayelsa Recovery Plan. The Fund should be financed through contributions from the IOCs and NNPC, as in Ogoniland. It should also follow best international practice for governance, transparency and accountability.
The Bayelsa Recovery Plan will provide a rigorous basis for systematically addressing the huge damage that over 60 years of hydrocarbon pollution has done in Bayelsa. But it will not come cheap.
For example, initial estimates suggest that remediation efforts could cost US $12 billion and could take up to 12 years. While large, these estimates are broadly in line with the costs seen in other remediation programmes: for example, they are roughly five times the projected cost of the programme to address the legacy of oil pollution in Ogoniland, an area fifth the size of Bayelsa that has suffered less pollution.
proposes that a Bayelsa Recovery Fund should be established. The fund should be capitalised by the oil companies that have operated in Bayelsa since 1958. Reflecting the principles used to determine oil company contributions in Ogoniland, each company should contribute according to its proportion of total Bayelsan oil pumped since commercial exploitation began, perhaps weighted to reflect the company’s pollution record across its operational history. Liability for volumes pumped and pollution caused at wells already divested of would depend on exact terms of divestment contracts. Safeguards would need to be put in place if necessary to prevent oil producers attempting to divest or exit the market to avoid their liability.
In considering the governance of the Fund, and learning from the experience of the Hydrocarbon Pollution Remediation Project (HYPREP)442 and other bodies, the Commission is mindful of the need for the fund to be accountable to the people of Nigeria and Bayelsa, while at the same time embedding strong safeguards to ensure probity and independence from vested interests. To strike this balance, the Fund should be held in an escrow account with an international bank or institution and governed by a board that includes representatives of key international organisations, such as the World Bank or the UNEP, as well as the Federal Government and the State Government of Bayelsa. Local communities should also be involved, perhaps through a formal advisory panel, as well as through a seat at the boardroom table. The IOCs should not, however, have seats on the board. Further work is required, but it may be necessary to establish the Fund through legislation.
The Commission appreciates that this arrangement will require negotiation with a range of parties. As with any well-governed institution, we would expect the Fund to issue annual reports, be subject to annual audits by international firms, and be subject to detailed external scrutiny.
Other interventions in public health, environmental recovery and economic regeneration will require a similar effort potentially extending into decades. All of this will need to be underpinned by a programme of capacity and capability building, training and investment. Taken together, the programme will demand the mobilisation of people and resources on a scale previously unseen in Bayelsa.
Establish a Bayelsa Recovery Agency.
Set up a specialist agency to manage the delivery of the Recovery Plan. The Agency should draw on international experts and staff to ensure best practice implementation and performance management of the Recovery Programme. To minimise the risk of misappropriation of funds, the Agency should be overseen by an international panel and be subject to regular international on-the-ground audits and assurance. The Agency should operate to international standards of transparency and separate independent scrutiny bodies should be established.
The management of such a programme will require high levels of bureaucratic and specialist capacity and capabilities that span not just all facets of the Recovery Plan itself, but also performance management, contract management and other skills sets required to run major, multi-year projects.
It will also require very strong processes for compliance, internal and external audit, and detailed frontline oversight. This could potentially operate on the ‘three lines of defence’ model seen in financial services. Especially given the challenges other clean-up efforts in Nigeria and beyond have faced due to failure to adhere to standards, delivery and, in the case of HYPREP, significant issues of fraud, robust oversight mechanisms will be required. A programme management architecture will need to be put in place to track and manage the implementation of initiatives, validate and quality assure work, and closely monitor expenditure. As part of this regime, best practice and specialist hubs will be needed to support effective oversight of activities. The programme as a whole will require management with a mix of deep subject matter expertise and experience in running complex, multi-year, multi-location initiatives.
This effort will need to be complemented by effective governance that offers a necessary degree of accountability to the people of Nigeria and Bayelsa, while also being safeguarded from vested interests and political interference. Any governance mechanism should be independent of the IOCs, incorporate international expertise, and embody the highest standards of probity and conduct.
While the state and federal bureaucracies may be involved as partners in delivering some elements of the programme, the Commission believes that they currently lack the capacity, skills or governance capabilities to be able to implement an initiative of this size and complexity. Similarly, the IOCs’ track record suggests that they neither have the capability nor a sufficiently independent approach to deliver and administer such a programme.
The Commission believes that a new institution, the Bayelsa Recovery Agency, should be established to deliver the core of the Recovery Plan. This institution should reflect best practice both internationally and across Nigeria.
The Commission has not determined the detailed delivery model of the Agency, but envisages that it would work with both private and public sector partners to implement the elements of the Recovery Plan. For instance, the Bayelsa State Government would likely have a large role to play in helping deliver the health elements of the Recovery Plan, while others, such as specialist clean-up providers, might be contracted primarily to highly specialised private partners.
The Agency’s management should be composed of international and local experts. Its governance, as with the Fund, should be undertaken by a mix of experts drawn from international organisations and recognised international experts, as well as representatives of the federal and state governments. This body should be complemented by the establishment of a leadership advisory entity, drawn from local communities, to ensure they have a voice.
Provide access to a new compensation mechanism.
Those who have suffered losses as a result of pollution should have the ability to access a new simplified grievance mechanism to help them secure compensation payments. The establishment of this mechanism would provide an alternative for those who did not want or did not have the capacity to undertake court action. Legal advice and support should also be made available for those filing claims. Compensation should be complemented by structures to ensure the voice of affected individuals and communities is heard throughout the remediation process.
A key cornerstone of remediation is compensation. Damage must not just be repaired. Losses must be made good. People must, if possible, be made whole.
As previous chapters have outlined, all too often the victims of oil pollution have been denied the compensation they deserve. Companies rarely pay and even where they do, the amounts often do not reflect the true scale of losses. Few can afford to use the courts to pursue justice, and even if they are able to, their cases can spend years trapped in clogged courts.
A new compensation system, founded on the ideal of ‘just compensation’, community self-determination and reparation for past and present damages, is needed. In Chapter Five, the Commission outlines an ambitious proposal to overhaul the compensation system by introducing a new compensation fund mechanism that will provide an avenue for affected individuals to seek rapid restitution through a streamlined process. The chapter also lays out a first-of-its-kind grievance mechanism to enable rapid redress should individuals or communities be unhappy with the compensation they are offered. We also lay out proposed changes to the law on liability to encourage victims to pursue claims for compensation, regardless of the proximate causes of a spill or leak, and changes to legislation to enable class actions. Such measures would allow communities and groups of victims to press their case for compensation collectively. The PIA adds nothing new to the legal framework as far as compensation for oil spills is concerned.
The Commission proposes that all those who have suffered losses as a result of historical legacies of spills should be able to access these new mechanisms under the new proposed rules on liability and class action. This recommendation is pertinent in the light of the fact that companies which historically contributed to the pollution of Bayelsa State are divesting from their onshore assets and, in so doing, they are likely to offload their responsibilities onto indigenous firms which may not have the capacity to remediate the environment from the impact of historical ‘liabilities’. These firms also do not have the financial resources to compensate for historical spills whose impacts on the environment are ongoing. To support this, the State Government should make free legal support available to help those who have legitimate claims to submit an application and pursue their case. The Commission recognises that compensation, even if successful and fair, may mean justice for particular families and individuals, but not for Bayelsa as a whole. The Commission also acknowledges that compensatory mechanisms alone, particularly if poorly managed, can generate new forms of conflict which could be the cause of further instability and injustice.
As outlined in previous sections of this chapter, every element of the remediation programme should also be complemented with mechanisms to ensure that the voices of the people and communities who have borne the brunt of the pollution and its ill effects are heard. Local communities should be involved formally in the SCAT process and kept abreast of its progress, and multiple scrutiny bodies and local advisory councils should be established to ensure that these local voices are heard in the delivery of the remediation.
The establishment of these new mechanisms will not affect individuals’ ability to seek remedy through the courts. However, substantive compensation accepted through the new mechanisms will be in full and final settlement of any claim.
The Commission is under no illusions. These are ambitious measures. Based on the sums above, the Recovery Plan, underwritten by the Fund, will require expenditure amounting to three times Bayelsa’s annual GDP across its lifetime. It will involve a huge organisational effort to mobilise and effectively manage thousands of clean-up technicians, health workers and other professionals. This, in turn, will demand the development of an extensive parallel bureaucracy, rooted in an international oversight architecture. All of these proposed measures will require unprecedented levels of co-operation and co-ordination between the government at federal and state levels, oil producers, international organisations and local communities. It is undoubtedly a big ask.
But it is also a necessary one. Anything less will fail to deliver for the people of Bayelsa. The current approach to remediation is broken beyond hope of repair. The remediation required to put right 60 years of pollution is simply on a different scale to that being offered today.
Moreover, it is a fair ask. Over the lifetime of oil production in Bayelsa, the IOCs have generated tens of billions of dollars of revenues from their wells. The Nigerian Federal Government itself has benefitted to the tune of over US $150 billion from the revenues and royalties the oil bonanza has generated.451
Much of this profit has come at the expense of Bayelsa. The oil producers – with the acquiescence and in some cases the active connivance of the federal government – have externalised many of the costs and risks of production. It is not an accident that despite the logistical and security challenges it presents, Nigeria is seen as a low cost, high profitability jurisdiction for the oil majors. For instance, in a Shell Group annual report, the company states that it makes a higher profit per barrel and incurs lower production costs in the country than in virtually any other region of the world in which it operates.452 The Commission believes these low costs of production are further proof that the IOCs are failing to invest in spill prevention and leaving the people of Bayelsa to pick up the tab.
Especially given this context, the funding the Commission is seeking for remediation is relatively modest. On conservative estimates, since commercial production began, over seven billion barrels of oil have been pumped in Bayelsa.453 The Commission’s proposals, if fully implemented, would be equivalent to adding just US $0.7-1.4 at 2021 values to the cost of each barrel pumped in the state over the last six decades. This is equivalent to just 1-2 percent of the value of today’s oil price of US $70 per barrel.454
These measures will be critical to enabling Bayelsa to escape the legacy of over 60 years of pollution and environmental degradation. But on their own, they will not be enough. They will need to be accompanied by a paradigm shift in the regulatory, legal and governance regime of the oil industry at both national and international level. This is the subject of Chapter Five.
