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Eko Atlantic Environmental Impact Assessment: Legal Issues

Eko Atlantic Environmental Impact Assessment: Legal Issues. Presentation By: Prof. M.T. Okorodudu-Fubara Faculty of Law, Obafemi Awolowo University, Ile-Ife. Presented @ Roundtable. SUSTAINABILITY OF COASTAL ENVIRONMENTS: THE UNCERTAINTIES AND RISKS OF INFRASTRUCTURAL DEVELOPMENTS

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Eko Atlantic Environmental Impact Assessment: Legal Issues

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  1. Eko Atlantic Environmental Impact Assessment: Legal Issues Presentation By: Prof. M.T. Okorodudu-Fubara Faculty of Law, Obafemi Awolowo University, Ile-Ife. Okorodudu-Fubara, M.T. 2012

  2. Presented @ Roundtable • SUSTAINABILITY OF COASTAL ENVIRONMENTS: THE UNCERTAINTIES AND RISKS OF INFRASTRUCTURAL DEVELOPMENTS • Date: Thursday, 27 September, 2012 • Venue: Nigerian Institute for Oceanography and Marine Research, Victoria Island, Lagos • Time: 12 noon Okorodudu-Fubara, M.T. 2012

  3. Presentation Outline • The Planned Project • What the EIA Law Requires • The EIA Process/Procedures • Eko Atlantic EIA? • EIA: The Lagos State “Preemptive” Measures • Violations of EIA Statute • Vital Laws Applicable to the Project • The Way Forward Okorodudu-Fubara, M.T. 2012

  4. The Planned Project • To develop V/I shoreline dredging appx. 90million cubic metres of sand from marine shelf waters to reclaim 900 hectares of land for future development of a modern city. • Location: Phase 1 of the Eko Atlantic City Development Project will be situate at the Lagos Bar Beach, Victoria Island, Eti Osa Local Government Area, Lagos, Nigeria. Okorodudu-Fubara, M.T. 2012

  5. What the EIA Law Requires • The Environmental Impact Assessment Act, 1992 establishes the regulatory framework for EIA process in the country. • The Act prohibits execution of private or public industrial or development, etc projects falling under the ‘mandatory list’ schedule to the statute without prior consideration of the environmental consequences of such a proposed action, in the form of an environmental impact assessment (EIA) and a Certificate in writing by FME signifying approval to commence. The Statute legally ‘forbids’ such erring projects. See Sections 2-12; 41 generally • See S. 13 …cases where environmental assessment is required • Mandatory Study List 4,9&17…Captures the Eko Atlantic City Project • It is an offence to fail to comply with the provisions of the Act …. See S. 61 Okorodudu-Fubara, M.T. 2012

  6. FLOW CHART OF FME EIA PROCESS Okorodudu-Fubara, M.T. 2012

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  12. Eko Atlantic City EIA? • Is the Eko Atlantic City Project EIA Act, 1992 compliant? • This is the trillion dollar question! • There doesn't seem to be an unequivocal answer to this question. • All indications point to the fact that the answer is no. Okorodudu-Fubara, M.T. 2012

  13. Eko Atlantic City EIA? • Earlier information obtained… • Dredging commenced on the site in 2009 • A public meeting was held on January 21, 2011. • “Eko Atlantic City EIA” was completed in April, 2011 and placed on display for comments from July 13 to August 10, 2011. • Record of meetings between SENL and different groups in Lagos State between 2009 and 2011… All these do not add up to the required “Federal EIA Act compliance.” Okorodudu-Fubara, M.T. 2012

  14. Eko Atlantic City EIA? • Reliable information obtained recently… • Source LS government: • “Federal Govt. has withdrawn the draft impact assessment viewed by Mr. Ako Amadi • Reason: “..they had too many reservations about it” • Position now is: “..there is no EIA at all at the moment..” Okorodudu-Fubara, M.T. 2012

  15. EIA: The Lagos State “Preemptive” Measures • 2008…Lagos State House of Assembly passed Bill for a law to provide for regulation of waterfront infrastructure, sand dealing and dredging operations in the state. • The Lagos State Waterfront Infrastructure Development Law, 2009 (LAWID). • LAWID empowers the LS Ministry of Waterfront Infrastructure Development to grant permit for sand dredging or dealing within, around and on waterfronts and embankments. • Possibly LS passed the LAWID Law to facilitate commencement of the Eko Atlantic City Project and other coastline alteration projects in lieu of EIA certification from the FME. Okorodudu-Fubara, M.T. 2012

  16. Violations of EIA Statute • The Eko Atlantic Project is a clear violation of extant EIA Statute and Regulations • LAWID is not a substitute for the EIA Act, 1992..s. 2 which prohibits listed public or private projects without prior consideration of the environmental effects • Eko Atlantic Project did not comply with the provisions of the EIA Act and the National Environmental (Coastal and Marine Area Protection) Regulations, 2011 S. I. No. 18…the latter prescribes ‘guidelines for development activities’/Reg. 10 and ‘requirements for permit’/Reg. 12. ‘It shall be an offence for a person or body corporate to (1) Contravene any of the stipulated procedures and guidelines as stated under regs. 10 & 12 of these Regs.(2) Carry out any act listed under the prohibited activities under reg. 6…’ S. 61…Offence and Penalty “Any person who fails to comply with the provisions of this Act shall be guilty of an offence under this Act and on conviction in the case of an individual to N100,000 fine or to five years imprisonment and in the case of a firm or corporation to a fine of not less than N50,000 and not more than N1,000,000.” S.I. No. 18 Reg. 20…’….(2)Any corporate body which violates any of the provisions under these Regs shall be guilty of an offence and shall on conviction be liable to a fine not less than Five Million Naira (N5,000,000) and an additional fine of Fifty Thousand Naira (N50,000) for every day the offence subsists. (3) In addition to the penalty provided..a person/body corporate found guilty shall be required to carry out remediation work.’ Okorodudu-Fubara, M.T. 2012

  17. Violations: Statutory Options (without prejudice to obvious drafting gaps) S. 52 Power to Prohibit Proponent S. 53 Injunction ‘Where on the application of FME, it appears to court of competent jurisdiction that a prohibition made under… this Act in respect of a project has been, is about to be or is likely to be contravened, the court may issue an injunction ordering any person named in the application to refrain from doing any act or thing that would commit the proponent to ensuring that the project or any part thereof is carried out until…’ NOTE.. Prohibition is not indefinite.. S. 54(2) • ‘…(2) Where a review panel established to assess environmental effects .. Submits a report to FME indicating that the project is likely to cause any serious adverse environmental effects, FME may prohibit the proponent of the project from doing any act or thing that would commit the proponent to ensuring that the project is carried out in whole or in part until FME is satisfied that such effects have been mitigated.’ Okorodudu-Fubara, M.T. 2012

  18. Some Vital Laws Applicable to the Project Okorodudu-Fubara, M.T. 2012

  19. The Way Forward • Eko Atlantic City Project… A Fantastic Idea… But triggers of a wide range of extant critical Statutes and Regulations • The Proponents must be brought back to conformity and compliance in accordance with due process of law and executive /administrative processes. • This presentation sheds light on what the laws of the country stipulate, in general, and in particular the statutory framework for the EIA process, and if at all the Eko Atlantic City Project and its proponents are compliant. • The conclusion is that the individuals and firms involved in the Eko Atlantic City Project may be found guilty of offences under s. 61 EIA Act, 1992, and Reg. 20 National Environmental (Coastal and Marine Area Protection) Regulations, 2011. • It is recommended that an Executive/Administrative order of prohibition be placed on the proponents pending due compliance with all applicable laws relevant to the project. Okorodudu-Fubara, M.T. 2012

  20. Way Forward - Options • Legal Action • Examine civil or criminal violations of extant laws triggered by the Eko Atlantic Project • Thorough investigation of individuals and firms involved and prosecute if found culpable • OR: Make a U-Turn to start all over simply impose “prohibition order” on the proponents and compel ‘total compliance with the EIA Act, 1992 & S.I. 18, 2011’ • No further action until an approval “Certificate” is issued by FME in accordance with S. 41 EIA Act. • Political Solution • Mediation by FG and LSG authorities • Reasonable resolution of the matter between FG and LSG • Must be against the backdrop of the applicable laws..essentially the Constitution and all applicable Federal laws • Avoid reckless violation of extant laws. • Carry all stakeholders along in the overall public interest. Okorodudu-Fubara, M.T. 2012

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