The Doctrine of Absolute Liability and Environmental Pollution in Nigeria: A Shift from Fault-Based Liability

Abstract

Oil and gas exploitation and production in Nigeria, particularly in the Niger Delta region, is awash with pollution incidents with its attendant impact on the health of locals as well as foreseeable damage on the biodiversity of the region. Owing to this development, victims of environmental pollution have repeatedly instituted legal actions against transnational corporations and the Federal Government with a view to recovering damages and enforcing rights via statutory claims (which basically reflects traditional English common law rules on liability). Notwithstanding, it is observed that such claims have not availed victims of pollution with the basic reliefs sought, and this is seemingly traceable to the technicalities in proving negligence on the part of TNCs; as a vast majority of oil pollution incidents are caused by ‘acts of third parties’, and under such scenarios, TNCs will only be liable where they neglect to protect oil facilities. This research opted for turnaround in the environmental justice system by examining extant legislation on environmental pollution incidents caused by oil and gas, particularly whether the doctrine of absolute liability is applicable to environmental polluters in Nigeria. Findings have shown that in view of the enactment of the Petroleum Industry Act in 2021, which has a wider legal framework in the oil and gas industry, there appears to be a major shift in liability principles from the common law of negligence to an absolute liability on environmental polluters regarding remediation and compensation in incidents of environmental damage. This paper utilises a doctrinal research method (or black letter law approach). It is maintained that a few jurisdictions, particularly India, have long recognised and enforced the absolute liability doctrine, particularly with regards to hazardous industrial activities. It is recommended that maintaining an absolute liability regime in the oil and gas industry will act as a mechanism to compel TNCs to exercise caution and completely remove all known common law defences.

Keywords

References