Introductory Background

2. MNOCs CD Wellbeing Efforts in Oil-Rich Niger Delta@ the Concurrent Session‘IA Best Practice in Mining: Lessons Learned’, @ the International Association for Impact Assessment (IAIA) 2018 Annual Conference,Durban Convention Centre, Durban,South Africa,Wednesday, 16 May, 2018, 15:00 - 16:30 hrs, by Edward T. Bristol-AlagbariyaFaculty of Law, University of Port Harcourt, Port Harcourt, NIGERIA

3. Introductory Background • The Right to Development is a 3rd Generation Human Right (HR) • The 1st & 2nd Generations HRs are Civil & Political Rights (CPRs), & Economic & Socio-Cultural Rights (ESCRs) • CPRs & ESCRs are respectively enshrined in the International Covenant on CPRs (ICCPRs), 1966, & the International Covenant on ESCRs (ICESCRs) 1966

4. Introductory Background • Article 1 of the UNGA Res 41/128 of 4 December 1986, Declaration on the Right to Development, recognises ‘Development’ as an inalienable HR • This HR puts people at the centre of development process (Article 1) & makes it a duty on global states to achieve same (Article 4) • The amended 1999 Constitution of the Federal Republic of Nigeria (FRN), is instructive on the core duty of government to people of the country

5. Introductory Background • The preamble of this Constitution of the FRN provides inter alia that its purpose is to promote good governance (GG) & the welfare of all persons in the country, & Section 14(2) (b) states that ‘the security & welfare of the people’ are the primary purposes of government • Also, business organs like Multinational Oil & Gas Companies (MNOCs) embark on Community Development (CD) in their areas of operation

6. Introductory Background • In developing countries like Nigeria, characterised by bad governance, Corporate Voluntary Initiatives (CVIs) often exceed the requirements of national laws, regulations & practices • In such developing countries, MNOCs secure Regulatory Licence from Host Government (HG) & Social Licence from poor & neglected resources-rich communities by embarking on Social Responsibility (CSR) programmes such as CD programmes & projects in the communities • Impact-Benefit CD (IBCD) programmes thus help to alleviate the adverse effects of the operations of MNOCs in poor & neglected resources-rich communities

7. Introductory Background • In such developing countries, IBCD programmes of MNOCs demonstrate the failure of HGs to actualise the Right to Development in their jurisdictions • In most advanced countries, MNOCs implement IBCD via Impact & Benefit Agreements/Impact Benefit Agreements (IBAs) • In developing countries like Nigeria, MNOCs implement IBCD schemes via Memoranda of Understanding (MoU) with their resources-rich host communities

8. MNOCs in Niger Delta Region • MNOCs in Nigeria operate in poor & neglected resources-rich communities of the Delta region • In the oil-rich Niger Delta communities, developmental efforts of MNOCs started in the 1980s as Community Assistance (i.e., development assistance) & thereafter successively as CD & SCD initiatives • MNOCs commenced SCD about 2000 onwards by integrating environmental & social concerns of the people of their host communities to boost the wellbeing of the people & the communities

9. MNOCs in the Niger Delta Region • Since then, SCD initiatives of the MNOCs have been engineered by fall-outs of the UN Conferences on the Environment & Development towards Sustainable Development (SD) • Particularly, the UN Global Compact, launched by the UN Secretary-General, in July 2000, spurred SCD initiatives of MNOCs operating in the Niger Delta region • MNOCs in the region then began to operate in conformity with the UN system on SD in the overall interest of humanity & society at large

10. Case-Study of the BKDF • The Bonny Kingdom Development Foundation (BKDF) was initiated by MNOCs operating in Bonny Kingdom (The Bonny Joint Industry Companies [JICs]/FGN Joint Venture [JV] Companies) led by Nigeria LNG Limited (NLNG) • Other JICs are the Shell Petroleum Development Company Nigeria Limited (SPDC/Shell Nigeria/SPDC) & Mobil Producing Nigeria Unlimited (MPNU – a subsidiary of USA ExxonMobil Corporation)

11. Case-Study of the BKDF • BKDF is designed to be a community-owned ‘development trust’, to empower Bonny Kingdom to take charge of its socio-economic growth & development • It is to be an international, best-in-class, all-stakeholders’-inclusive, transparent and well-run development agency, to serve as a global showcase for Wetland regions all over the world • An MoU between the JICs & Bonny Kingdom, dated 3 October 2015, gave birth to the BKDF

12. Case-Study of the BKDF • BKDF is to be funded from multilateral sources such as annual contributions of the Bonny JICs & contributions of other companies operating in Bonny Island, international development agencies, private donors & charities, etc • NLNG is to donate 2 Billion Naira annually, & 1Billion Naira Peace Initiative donation, if there was no business interruption in the preceding year • Shell Nigeria is to donate 600 Millom Naira annually

13. Case-Study of the BKDF • Funds for the BKDF are meant to execute Bonny Kingdom-wide CDs, eg • →Bonny Utilities Company Ltd (BUC) • →Ibanise Initiative • →Bonny Vocational Centre (BVC) & general Educational Endowment Fund • →Bonny Integrated Recruitment Centre (BIRC) • BUC provides electricity & water supply in Bonny Island & Finima Community

14. Case-Study of the BKDF • Finima Community was involuntarily displaced & resettled to build the NLNG plant site & residential area along Bonny Island • Ibanise Initiative is comprehensive community-wide health initiative/insurance designed to combat high prevalence of HIV/Aids, Malaria & Tuberculosis (TB) in Bonny Kingdom • The BVC is a vocational training centre for developing construction manpower, & etc technical/trade skills & competencies aimed at self-reliance of Bonny youngsters

15. Case-Study of the BKDF • The BIRC provides mainly construction manpower for the Bonny JICs • ●Also, BKDF is to cater for CD of NLNG’s displaced & resettled Finima Community • ●The BKDF is to cater for about 5 NLNG’s Bonny Pipeline (GTS) Communities that NLNG is committed to provide CD projects • ●Accordingly, BKDF is to cater for CD NLNG’s 2 Bonny Water Well Communities that NLNG is committed to provide CD projects • ●The BKDF is to cater for CD in Bonny Island & its CD may extend to about 40 other Bonny Communities

16. Case-Study of the BKDF • BKDF is to be registered with the Corporate Affairs Commission (CAC), Nigeria, as Special Purpose Vehicle (SPV) for the afore-mentioned CD & etc CD related projects & programmes • BKDF is to subsist for 25 years, subject to review every 2 Years, via written consent of all the parties to ensure its purposeful fulfilment • BKDF has a stakeholders internal grievance handling procedure on employment & CD matters

17. Case-Study of the BKDF • The BKDF MoU supersedes the 1998 JICs MoU for infrastructural development eg roads, electricity power & water supply projects in Bonny & a master plan for the development of Bonny Island • BKDF is to be formally institutionalised after the initial Shell Bonny Terminal Integrated Project (BTIP) 505 Million Naira (5,000,000.00 USD) CD Trust Fund of the 1990s - 2000 • Institutionalisation of the BKDF is encumbered with a Law Suit on non-compliance with law (the Companies Act/CAMA) & agreed criteria of the JICs & Bonny Kingdom on Proposed Trustees

18. Case-Study of the BKDF • The Law Suit (Suit No: FHC/PH/CS/04/2017), Aseme-Warisenibo Reginald Ayi Cross Brown & 3 Ors vs. The Registrar General CAC, & 6 Ors • The Six Others are : 1): The Registrar General, Corporate Affairs Commission (CAC) • 2): The CAC • 3): Nigeria NLNG Limited • 4): Michael Faniran (Rep of ACENTURE, 3rd party Manager) • 5 & 6) The Reps (Chair & Secretary) of the Bonny Chiefs’ Council (BCC)/Amanyanabo (King) of Bonny-in-Council

19. Case-Study of the BKDF • The Plaintiffs are the Founding & Aboriginal Royal Houses of Bonny Kingdom, with CAC’s Registration Certificate No (CAC/IT/No.100619) • The CAC is the govttal organ that registers companies & incorporated trusts • The CAC ensures that registered companies & incorporated trusts comply with their objects & purposes

20. Case-Study of the BKDF • The Plaintiffs are contending their unlawful exclusion by the complicity of the Amanyanabo/King of Bonny-in-Council/BCC in publishing a list of Eleven proposed BKDF Trustees • Alleged breaches of the Plaintiffs’ rights may be summarised as follows:- • (a) environmental justice & • (b) particularly, the breach of their Human Rights to development (i.e., exclusion from CD decision-making process) directly affecting them as Founders & Aborigines

21. Case-Study of the BKDF • The Reliefs of the Court that the Plaintiffs are seeking for are two-fold • (a) One Proposed Trustee directly emanating from them & • (b) Two Proposed Trustees for the NLNG’s displaced Finima Community • The said breaches of the Plaintiffs’ rights led to another Law Suit on breach of Human/Fundamental Rights

22. Case-Study of the BKDF • This 2nd Law Suit is on alleged breach of Fundamental Rights of two Paramount Chiefs of the Plaintiffs’s extraction at the King of Bonny-in-Council/BCC • These Two Law Suits are being negotiated for amicable Out-of-Court settlement by the consent of the Two Courts involved • This case-study evidences stalled MoU initiatives designed to achieve CD vis-à-vis & human wellbeing in the oil-rich Niger Delta’s Bonny Kingdom

23. Case-Study of the BKDF • Wellbeing is a very broad & versatile word • The Wellbeing in Developing Countries (WeD) Research Group, Centre for Development Studies, Bath University, Somerset, England, United Kingdom, defines it as follows: • a state of being with others, where human needs are met, where one can act meaningfully to pursue one’s goals, and where one enjoys a satisfactory quality of life

24. Case-Study of the of the BKDF • The UK Department for Environment, Food & Rural Affairs (DEFRA) defines wellbeing thus: • a positive physical, social and mental state; it is not just the absence of pain, discomfort and incapacity. It requires that basic needs are met, that individuals have a sense of purpose, that they feel able to achieve important personal goals and participate in society. It is enhanced by conditions that include supportive personal relationships, strong and inclusive communities, good health, financial and personal security, rewarding employment, and a healthy and attractive environment. Consequently, numerous factors may influence an individual’s wellbeing

25. Concluding Remarks & Recommendations • A MoU is weak, as compared to a simple & enforceable IBA • The case of BKDF affirms the finding of the World Commission on Environment & Development (WCED)/Brundtland Commission’ Report, Our Common Future, that poverty is a major cause & effect of environmental problems • Poverty has the potential to inhibit CD/SCD in poor & neglected Oil-rich Niger Delta communities

26. Concluding Remarks & Recommendations • BKDF is designed to promote CD vis-à-vis human wellbeing in Bonny Kingdom • However, available fund for the BKDF is too meagre • Its key stakeholders should do more to enable it succeed • There is a NEED for Community capacity building for effective management of Corporate Social Investments towards SCD in Bonny Kingdom & other areas of the oil-rich Niger Delta region

27. Concluding Remarks & Recommendations • CD efforts are being compromised in the Niger Delta • BKDF’s Constitution should have provisions on the fund’s mismanagement via bad decision-making, etc • There is NEED for a Law on Corporate Social Investments to stipulate the rights & duties + penalties on officials of MNOCs, Govt & Communities who undermine the goals of such investments

28. Concluding Remarks & Recommendations • Existing National Code of Corporate Governance, with effect from 17th October, 2016, is encumbered by an injunctive order of a Law Suit • This Code, promoted by the Financial Reporting Council of Nigeria (FRC), is inadequate for the proposed Corporate Social Investments Law

29. Concluding Remarks & Recommendations • Certainly, govt should not abandon its core duty of catering for the welfare & security of the people • Govts of global states are expected to address developmental needs of their people • Govts of developing countries ought to cater for the developmental needs of their citizens & residents of their countries

30. Concluding Remarks & Recommendations • Developing countries like Nigeria, characterised by bad governance, are failing to cater for the developmental needs of their citizens & residents • GG is KEY to development, -CD & SCD • Govts in Nigeria should respect & enforce the Right to Development in the country & business eg MNOCs can assist GG wellbeing efforts • The NEED arises for GG in Nigeria

31. Concluding Remarks & Recommendations • Key stakeholders of the BKDF should ensure that its goals are not undermined by any of them eg by crafting a good constitution to achieve its set goals • When registered, the CAC should embark on the BKDF’s monitoring & follow-up measures, to ensure effective achievement of the BKDF’s goals