Ecological Law Case Study Series: Environmental Degradation of River Ethiope Nigeria

By

Irikefe V. Dafe (Founder, River Ethiope Trust Foundation), Ngozi Finnette Unuigbe (University of Benin, Nigeria), Geoffrey Garver, Gabriel D'Astous, Larissa Parker (MC Gill University Canada) and Grant Wilson (Earth Law Center USA)

Introduction

This blog post is the second in a series that we, at the Leadership for the Ecozoic (L4E) Law & Governance Research Group, are writing over the next few months. In this series, we strive to provide a glimpse of an alternate world shaped by the principles of ecological law. The emerging field of ecological law seeks to spur deep social, economic, and legal transformations in order to address the panoply of environmental justice crises the planet is facing.

Each blog will explore the current research that L4E is conducting with five project teams on case studies across the globe. These include wildlife management in Vermont, the impact of the St. Lawrence Seaway on Kahnawà:ke in Canada, the environmental degradation of the River Ethiope in Nigeria, the impact of High Seas law on marine biodiversity and the proposed Anitápolis mine in Brazil. A key premise of ecological and of the case studies is that all areas of law, not just environmental law, are potentially in need of reform in a transition from current legal systems to ones more in line with ecological law. Thus, each case study will highlight the laws and legal approaches, environmental ones as well as others, that allowed the development or policy project of concern in the case study and offer a reimagination of the project in an ecological law framework. We anticipate that in addition to a long-term vision that aligns the matter of concern more closely with all of the principles of ecological law, the case studies will also present nearer-term scenarios toward which practicable steps away from the current legal framework and toward the long-term vision are more apparent.

Our second case study relates to the environmental degradation of the River Ethiope in Delta State, Nigeria and current efforts to have the rights of the River recognized.

​​What is ecological law?

For those who are not familiar with ecological law, we will provide a brief overview of its fundamental principles. If you wish to learn a little more about ecological law, you can read the first blog in this series.

As expressed in the ELGA Oslo Manifesto, ecological law “is based on ecocentrism, holism, and intra-/intergenerational and interspecies justice.” It is about refocusing our legal systems so that they no longer prioritize the interests of humans over the integrity and health of ecosystems or the interests of our non-human neighbours. Planetary boundaries, such as the amount of GHGs humans can safely emit, would provide clear limits on human activity.[1] Intra-/intergenerational justice would also require that our laws impose equity between present and future generations, taking into account Indigenous, racialized communities, peoples in the Global South and others marginalized or oppressed under contemporary legal regimes. Ecological law also would incorporate interspecies equity into our legal systems; ensuring that the lives, needs and interests of other beings are considered along with those of humans. This recognizes that we share the Earth with a plethora of other species who have just as much of a right to live and strive here as we do.

Carla Sbert, a scholar of ecological law, has put forward three interconnected principles at the heart of ecological law. First, ecocentrism recognizes the interconnectedness of all beings and their equality. Second, ecological primacy ensures that human activity does not irreparably damage ecology. This entails respecting planetary boundaries, limiting material and energy consumption to respect ecological limits as well as restoring ecosystems. Third, ecological justice demands that intergenerational, intragenerational and interspecies equity be part of our laws.

The River Ethiope Case Study

The River Ethiope is a spring-fed river in the Niger Delta region of Nigeria that flows from a hill in the community of Umuaja in Ukwani Local Government Area (LGA) and flows through several towns and communities in five LGAs (namely Ukwani LGA, Ethiope East LGA, Ethiope West LGA, Okpe LGA and Sapele LGA) before joining the Atlantic Ocean at Benin River. It has a catchment area of about 2,500 square kilometres in which nearly 2 million people live. Two national river basin authorities, namely the Niger Delta Basin Development Authority and the Benin-Owena River Basin Development Authority, share the responsibility to manage the River Ethiope.

The extraction and exploitation of the region’s oil and gas resources dominates the economic activities of the Niger Delta. As such, the cultural and economic identity of the region is no longer one of a typical river delta system, but rather that of an oil-producing region. Like many other regions around the world, the Niger Delta suffers from the “resource curse” in that it is rich in natural resources, but the local communities receive little of any of the wealth generated from these resources.

Despite the heavy presence of oil and gas industries in the Delta, there are a number of other economic activities that are practiced in the catchment area including tourism, fishing, hunting, farming, logging and sand mining. The River Ethiope also functions as a source of food, water, spiritual homage, transportation, festivals, peace, unity among the people, climate change mitigation, and educational research.

Environmental monitoring and data related to the river remains patchy and seriously deficient. Known environmental issues directly confronting the river and its catchment area include poor water quality, poor aesthetic quality, loss of wetlands (over 60%), loss of native vegetation and biodiversity, infiltration of sand and silt, diversion of river course for recreation, loss of natural flow due to invasive weeds and siltation, and loss of the river’s capacity to support recreational and traditional activities such as swimming, fishing, bathing, spirituality and clothes washing.

Key causes of these environmental issues include oil and other industrial development, agriculture, wetland degradation (largely due to illegal and uncontrolled sand mining and tourism development), urban development and rising population, stormwater discharge, climate change, flooding (which exacerbates the deposit of contaminants), erosion, and land use conflicts.

The Current Legal Framework Governing the River Ethiope:

As a first step in our case study, we are identifying and surveying the legal and institutional framework that directly impacts the wellbeing of the River Ethiope. Notably, the laws, policies and practices of the federal government, Delta and Edo State, and the five local governments through which it passes (Ukwani, Ethiope East, Okpe, Sapele and Ethiope West) are the main legal arenas affecting the river. These legal regimes, in addition to international trade and finance law, strongly support the oil-based economy in the region.

At the constitutional level, article 16 of the Nigerian constitution enshrines economic developmental objectives which offer strong support to the exploitation of the country’s natural resources. The potential of Article 20 of the constitution, which mandates that “the state shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria”, to strengthen environmental protection is hampered in that article 6(6)(c) of the constitution renders it non-justiciable.

Many Federal and State environmental laws exist to protect the environment. [2] However, these laws are not well implemented or enforced. Ownership and control of water resources under federal law is generally tied to land ownership, and applies to both surface and groundwater. Legal provisions to deal with over appropriation, especially groundwater, are either lacking or weakly implemented and enforced. Overall, the land use and ownership provisions of federal, state, local and customary law are complicated and ineffective for ensuring that land use does not cause environmental harms.

Viewing this Legal Framework Through an Ecological Lens:

In the second step of our case study, we follow the three interconnected principles that Sbert formulated -- ecocentrism, ecological primacy and ecological justice -- to assess the current legal framework governing the case of the River Ethiope.

We can already conclude that the current laws fail to adopt an ecocentric approach and are rather highly anthropocentric. Further, the current legal and institutional framework that applies to River Ethiope and its catchment does not give primacy in the law to respecting and keeping human activities within the bounds of ecological limits, and to the extent such primacy exists, it is not well implemented and therefore falls short of ecological primacy. Finally, the current legal and institutional framework that applies to River Ethiope and its catchment is very weak on ecological justice, in that it does not ensure intergenerational, intragenerational and interspecies fairness and justice. As a result, there are high rates of poverty in the human communities in the catchment area because they do not benefit from the wealth extracted from various developmental activities going on in and around River Ethiope ecosystems. Further, harm to aquatic species is ongoing, and other species in the catchment face declining abundance and diversity.

Adopting an Ecological Law Lens:

As a final step, our case study points to the future notably by highlighting the work the River Ethiope Trust Foundation (REFTON) has been doing. They are leading efforts to recognize the legal rights of the River Ethiope. These rights would protect the River from further pollution as well as ensure that it is restored and that native biodiversity is protected. At the heart of these initiatives is reconnecting the people and stakeholders in the River Ethiope catchment with the river by uniting them around a shared appreciation and love for the river and its age-old importance to all of the communities who depend on it.

Such an approach would fall within Sbert’s three interconnected principles. Recognizing the rights of River Ethiope will put the river and its ecosystems on an equal plane with the people, communities and businesses/corporations who rely on or have an impact on the river. Interconnectedness and holistic systems-based thinking about the River and its ecosystems would become the dominant legal norms.

The core governing principle for the River and its ecosystems would be respecting the ecological bounds that support the viability of future human communities in the catchment area.

Finally, REFTON has developed an approach to increase ecological justice in the management of the River Ethiope. It starts with better integrated water resource management which is oriented around protecting the capacity of River Ethiope and its catchment to be life-enhancing for people and all life, and which engages all stakeholders. REFTON is also seeking to increase education, outreach and awareness building in local communities in order to reconnect people to the River as a cherished source of life and wellbeing.

Further Readings on Ecological Law:

Kirsten Anker et al, eds. From Environmental to Ecological Law (Routledge, 2020).

Carla Sbert, The Lens of Ecological Law: A look at mining (Edward Elgar Publishing, 2020).

Klaus Bosselmann & Prue Taylor, Ecological Approaches to Environmental Law (Edward Elgar Publishing, 2017).

Geoffrey Garver, Ecological Law and the Planetary Crisis A Legal Guide for Harmony on Earth (1st ed, Routledge, 2021).

“From Environmental to Ecological Law: The future lies ahead” (2019) 43:3 Vt L Rev 1.

​​[1] Geoffrey Garver, “The rule of ecological law: The legal complement to degrowth economics” (2013) 5:1 Sustainability 316.

[2] National Water Resources Institute and River Basin Development Authorities (both created in 1976, with another RBDA Act in 1986); Federal Ministry of Water Resources (created in 1977); Federal Environmental Protection Agency -- now Federal Ministry of Environment (created in 1988); National Environmental Standards and Enforcement Agency (created in 2007); Water Resources Decree (1993); Land Use Act (1978).