1 United Nations Development Programme (UNDP) Niger Delta Human Development Report (2006, UNDP) at 17.

2 Human Rights Watch The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria's Oil Producing Communities (1999, Human Rights Watch) at chap VI, available at: <http://www.hrw.org/reports/1999/nigeria/> (last accessed 28 May 2009).

3 Decree No 23 of 1992.

4 Niger Delta Development Commission (Establishment, etc) Act, no 6 of 2000.

5 Ikporuku, CO “Petroleum, fiscal federalism and environmental justice in Nigeria” (2004) 8/3Space and Polity 321 at 336CrossRefGoogle Scholar, observing that the establishment of these bodies was not mainly for benevolent reasons: “The militancy of community groups was a fundamental factor, for it was partly an attempt to pacify the people of the oil-producing areas.”

6 See J Taiwo “Oil and gas, power reform committees inaugurated” (8 September 2007) ThisDay, available at: <http://www.thisdayonline.com> (last accessed 8 September 2007). At the opening of the eighth edition of the Nigerian Oil and Gas Conference on 18 February 2008, Nigeria's president noted that “[t]he committee to restructure the industry has had a series of consultations with the major stakeholders whose contributions are being considered. The effort will culminate in the drafting of a Petroleum Industry Bill to be brought before the National Assembly.” See C Nwachukwu “You've lost focus, Yar'Adua tells NNPC” (19 February 2008) Punch, available at: <http://www.e-punch.com> (last accessed 19 February 2008).

7 Cap 350, LFN 1990.

8 See C Amanze-Nwachuku “FG set to review petroleum laws” (17 September 2007) ThisDay, available at: <http://www.thisdayonline.com> (last accessed 17 September 2007), noting that there are about 117 laws affecting the oil and gas industry in Nigeria.

9 J Taiwo “10,000 militants to get amnesty, N65,000 monthly” (18 July 2009) ThisDay, available at: <http://www.thisdayonline.com> (last accessed 18 July 2009).

10 M Aleshinloye-Agbola “Okah regains freedom” (14 July 2009) Daily Sun, available at: <http://www.sunnewsonline.com/> (last accessed 14 July 2009).

11 P Nwosu “MEND storms Lagos, attacks naval facility, kills 3” (14 July 2009) Daily Sun, available at: <http://www.sunnewsonline.com/> (last accessed 14 July 2009).

12 Cohen, JM and Uphoff, NT, “Participation's place in rural development: Seeking clarity through specificity” (1980) 8/3World Development 213 at 214CrossRefGoogle Scholar. Cohen and Uphoff note (at 213) that, although “there is little agreement on what participation is or its basic elements”, participation is possible under many conditions and is desirable to achieve development goals. They reject the notion of participation as a single phenomenon and (at 214) regard participation as “generally denoting the involvement of a significant number of persons in situations and actions which enhance their well-being”.

13 Note that the term participation is often used interchangeably with other terms like “public consultation”, “local community involvement”, “indigenous peoples' consultation”, “multi-stakeholder participation”, etc. But the term most commonly used in international instruments and in the literature is “public participation”. All the terms are used interchangeably in this article. Although the term “consultation” has a more technical meaning than “participation”, no such meaning is intended here.

14 25 June 1998, UN doc ECE/CEP/43 (1998).

15 27 June 1989, 72 ILO Official Bulletin 59, 48 ILM 1389 (1989).

16 NNPC “History of the Nigerian petroleum industry”, available at: <http://www.nnpcgroup.com/history> (last accessed 28 May 2009).

17 Ayodele-akaakar, FO “Appraising the oil & gas laws: A search for enduring legislation for the Niger Delta region” (2001) 3/2Journal of Sustainable Development in Africa 1 at 1Google Scholar.

18 WN Akpan “Between the sectional and the national: Oil, grassroots discontent and civic discourse in Nigeria” (dissertation submitted in fulfilment of the requirements of the degree of doctor of philosophy, Department of Sociology, Rhodes University, South Africa, October 2005) at 164.

19 Ibid.

20 Ibid.

21 Orji, EACOwerre in the Twentieth Century, 1901–1999 (1999, Casers) at 87Google Scholar.

22 Stamp, DAfrica: A Study in Tropical Development (1953, John Wiley and Sons, Inc) at 53Google Scholar.

23 This find led Prof Stamp to revise his work in 1964, expressing deep regret over his flawed declarations, but laying the blame on the state of geophysical technology at the time: “Prior to the first major strike in Saharan Algeria in 1956 it could be said, as in the first edition of this book, that Africa had no oil apart from the small fields along the shores of the Gulf of Suez in Egypt, and seven tiny fields in Morocco and Algeria. The picture is now very different, in large measure owing to modern methods of geological prospecting which enable investigation of what exists beneath the superficial sands, gravels, and alluvia occupying vast areas”: D Stamp Africa: A Study in Tropical Development (2nd ed, 1964, John Wiley and Sons, Inc) at 53–54. In the third edition of his book, he further acknowledged that “[s]ubsequent to the discoveries in the Sahara, oil and gas fields have been found more widely, including some in Nigeria and Cabinda, and the expectation of further discoveries is widespread”: D Stamp Africa: A Study in Tropical Development (3rd ed, 1972, John Wiley and Sons, Inc) at 50.

24 Ajomo, M “Law and changing policy in Nigeria's oil industry” in Omotola, JA (ed) Law and Development (1989, University of Lagos Press) 75 at 86Google Scholar.

25 NNPC “History of Nigerian petroleum industry”, above at note 16. See also, Atsegbua, L “The development and acquisition of oil licenses and leases in Nigeria” (1999) 23/1OPEC Review 55 at 57CrossRefGoogle Scholar.

26 Frynas, JG “Corporate and state responses to anti-oil protests in the Niger Delta” (2001) 100/398African Affairs 27 at 29CrossRefGoogle Scholar.

27 Ibid.

28 Id at 30.

29 Appiagyei-Atua, K “Self-determination v state sovereignty: A critique of the African Commission's decision in the Ogoni case” in Castellino, J and Walsh, N (eds) International Law and Indigenous Peoples (2005, Martinus Nijhoff) 300 at 313–14Google Scholar.

30 Frynas “Corporate and state responses”, above at note 26 at 30.

31 Ibid.

32 Cap 202, LFN 1990.

33 Land Use Decree, sec 1.

34 Id, sec 28.

35 Ebeku, KSA “Appraising Nigeria's Niger Delta Development Commission Act 2000” (2004) 25/1Statute Law Review 85 at 85CrossRefGoogle Scholar.

36 Akpan “Between the sectional and the national”, above at note 18 at 15.

37 Omotola, S “From the OMPADEC to the NDDC: An assessment of state responses to environmental insecurity in Niger Delta, Nigeria” (2007) 54/1Africa Today 72 at 79CrossRefGoogle Scholar.

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39 Ebeku “Appraising Nigeria's Niger Delta Development Commission Act”, above at note 35 at 86.

40 AI Osuoka “Oil and gas revenues and development challenges for the Niger Delta and Nigeria” (paper presented at the expert group meeting on the use of non-renewable resource revenues for sustainable local development, organized by the UN Department of Economic and Social Affairs, New York, 21 September 2007) at 7, available at: <http://www.un.org/esa/sustdev/sdissues/institutional_arrangements/egm2007/presentations/isaacOsuoka.pdf> (last accessed 29 May 2009).

41 See O Oham “Nigeria: N26.4 billion NDDC unspent funds missing, say reps” (20 July 2009) Daily Independent, available at: <http://allafrica.com/stories/200907200216.html> (last accessed 27 July 2009).

42 Omorogbe “The legal framework for public participation”, above at note 38 at 560.

43 See N Tattersall “Nigeria oil rebels reject Niger Delta summit” (17 June 2008) Reuters, available at: <http://www.reuters.com/article/latestCrisis/idUSL17190258> (last accessed 27 July 2009); S Adebayo “N'Delta: FG tips Kofi Annan to chair summit” (20 April 2008) Punch, available at: <http://www.e-punch.com> (last accessed 20 April 2008); S Adebayo, “Niger Delta summit: Nigeria asks UN for Gambari” (26 April 2008) Punch, available at: <http://www.e-punch.com> (last accessed 26 April 2008).

44 GA res 37/7 (annex), UN GAOR, 37th sess, supp no 51 at 17, UN doc A/37/51 (1982), 22 ILM 455 (1983), arts 16 and 23.

45 25 February 1991, 30 ILM 800 (1991), arts 2(6) and 4(2).

46 13 June 1992: UN doc A/CONF.151/26 (vol 1) (1992), 13 ILM 874 (1992), principle 10.

47 5 June 1992: 1760 UNTS 79, 31 ILM 818 (1992).

48 See the preamble to chap 23 of Agenda 21, approved by the UN Conference on Environment and Development on 13 June 1992: UN doc A/CONF.151/26 (vols I–III) (1992).

49 C Campbell-Mohn “The human dimension in twenty-first century energy and natural resources development: The new law of ‘public rights’ in private development in the United States” in Zillman et al (eds) Human Rights in Natural Resource Development, above at note 38, 233 at 233, noting that “[i]n the tapestry of laws that govern energy and natural resources in the United States, public participation is the warp – the string that supports and gives it its shape.”

50 Aarhus Convention, art 6(1)(a).

51 Id, art 6(1)(b). The term “proposed activity” is not defined in the convention; therefore parties have discretion to determine the relevant activity. However, they are bound by the rules and principles of international environmental law and, where relevant, European Community environmental law: Rodenhoff, V “The Aarhus Convention and its implications for the ‘institutions’ of the European Community” (2002) 11/3Review of European Community & International Environmental Law 343 at 347CrossRefGoogle Scholar.

52 Aarhus Convention, art 7.

53 Id, art 8.

54 Comm filed by the Centre for Regional Development/Transparency International Armenia and Sakharov Armenia Botanical Society (all Armenian NGOs) against Armenia: comm ACCC/C/2004/08.

55 Comm filed by Ecopravo-Lviv against Ukraine: comm ACCC/C/2004/03.

56 ILO Convention 169, art 15(2). Under art 13(2), the concept of indigenous lands is deemed to cover “the total environment of the areas which the peoples concerned occupy or otherwise use”. In other words, “lands” includes territories.

57 Id, art 6(1)(a).

58 Report of the committee set up to examine the representation by the Central Unitary Workers' Union (CUT) alleging non-observance by Colombia of the Indigenous and Tribal Peoples Convention 1989 (no 169), made under art 24 of the ILO Constitution: ILO doc GB.282/14/2 (21 November 2001) (Colombia Report). The report decried lack of consultation in three situations: the passage of a law governing consultation with indigenous peoples; the construction of a highway through indigenous lands; and the granting of permission for oil exploration in indigenous lands).

59 Report of the committee set up to examine the representation (by the Union of Workers of the Autonomous University of Mexico and the Independent Union of Workers of La Jornanda) alleging non-observance by Mexico of the Indigenous and Tribal Peoples Convention 1989 (no 169), made under art 24 of the ILO Constitution: ILO doc GB.289/17/3 (19 March 2004).

60 See Colombia Report, above at note 58, para 69.

61 Anaya, J “Indigenous peoples' participatory rights in relation to decisions about natural resource extraction: The more fundamental issue of what rights indigenous peoples have in lands and resources” (2005) 22/1Arizona Journal of International and Comparative Law 7 at 11Google Scholar.

62 Anderson, MR “Human rights approaches to environmental protection: An overview” in Boyle, AE and Anderson, MR (eds) Human Rights Approaches to Environmental Protection (1996, Clarendon Press) 1 at 9Google Scholar.

63 Rodenhoff “The Aarhus Convention and its implications”, above at note 51 at 344.

64 Aarhus Convention, art 2(5).

65 Ibid.

66 K Svitlana “New laws on public participation in the newly independent states” in Zillman et al (eds) Human Rights in Natural Resource Development, above at note 38, 467 at 475. See also Rodenhoff “The Aarhus Convention and its implications”, above at note 51 at 345, where she notes that the distinctive definitions of “the public” and “the public concerned” are of particular relevance in that they determine who is entitled to the rights set out in the three pillars of the convention.

67 McAllister, ST “Community-based conservation: Restructuring institutions to involve local communities in a meaningful way” (1999) 10/1Colorado Journal of International Environmental Law and Policy 195 at 207Google Scholar.

68 Pring, G(R), Otto, J and Naito, K “Trends in international environmental law affecting the minerals industry” (1999) 17/1Journal of Energy and Natural Resources Law 39 at 65CrossRefGoogle Scholar.

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70 Ibid, noting that such people invariably remain in contact with their communities of origin: “where they are more aware and educated (particularly in the case of people who have originated from rural towns and villages), they often contribute positively to community matters or function as spokespersons”.

71 For a classical articulation of the doctrine, see the famous English case Wagon Mound No 1 (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd) [1961] AC 388, 1 All ER 404. This case can be married with the earlier equally famous case of Donoghue v Stevenson [1932] All ER 1 where the English House of Lords, persuaded by the American case of MacPherson v Buick Motor Co [1916] 217 NY 382, 111 NE 1050, articulated the tortious principle of a general duty of care in what is popularly known as “the neighbour principle”: “The rule that you are to love your neighbour becomes in law you must not injure your neighbour, and the lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.”

72 Rio Declaration, above at note 46, principle 15.

73 European Environment Agency (EEA) “Late lessons from early warnings: The precautionary principle 1896–2000” Environmental Issue Report No 22 (2001, EEA) at preface.

74 Ibid.

75 Aarhus Convention, art 6(2)(a).

76 Id, (b)–(e).

77 Id, art 6(6)(a)–(f). This, however, is without prejudice to the right of parties to refuse to disclose certain information in accordance with arts 4(3) and (4), namely that: the public authority to which the request is addressed does not hold the information requested; or the request is manifestly unreasonable or formulated in too general a manner; or the disclosure would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law, or adversely affect international relations, national defence or public security, etc: id, art 6(6).

78 See above at note 55.

79 Comm ACCC/C/2004/03, above at note 55, para 7.

80 Findings and recommendations with respect to compliance by specific parties (Ukraine (1)): ECE/MP.PP/C1/2005/2/Add.3 (14 March 2005).

81 Aarhus Convention, art 6(3).

82 M Ross “Mineral wealth and equitable development” (background report for the World Development Report 2006) at 23–24, available at: <http://siteresources.worldbank.org/INTWDR2006/Resources/477383-1118673432908/Mineral_Wealth_and_Equitable_Development.pdf> (last accessed 29 May 2009).

83 Id at 24.

84 Ibid.

85 Report of the committee set up to examine the representation (by CUT and the Colombian Medical Trade Union Association) alleging non-observance by Colombia of the Indigenous and Tribal Peoples Convention 1989 (no 169), made under art 24 of the ILO Constitution: ILO doc GB.282/14/3 (14 November 2001).

86 Id, para 58.

87 ILO Convention 169, art 6(1)(c).

88 AR Lucas “Canadian participatory rights in mining and energy resource developments: The bridges to empowerment?” in Zillman et al (eds) Human Rights in Natural Resource Development, above at note 38, 305 at 322, reviewing a number of participant funding schemes developed and implemented by Canadian energy and related environmental impact assessment agencies.

89 Ibid.

90 ILO Convention 169, art 6(2).

91 Clavero, B “The indigenous rights of participation and international development agencies” (2005) 22/1Arizona Journal of International and Comparative Law 41 at 46Google Scholar.

92 Ibid.

93 Report of the committee set up to examine the representation by the Confederación Ecuadoriana de Organizaciones Sindicales Libres alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention 1989 (no 169), made under art 24 of the ILO Constitution, particularly para 38: ILO doc GB/282/14/2 (14 November 2001) (Ecuador Report).

94 The bidding process for the project was held on 26 June 1995 and the share agreement between the Ecuadorian government and Arco Oriente, Inc (the corporation executing the project) was signed on 27 April 1998. However, Ecuador ratified the convention on 15 May 1998 and it came into force in Ecuador on 15 May 1999, more than one year after the project was established: id, paras 2, 10 and 23.

95 Id, para 28, noting that some of the facts outlined in the complaint occurred after the convention came into force in Ecuador.

96 Id, para 24.

97 Id, para 25.

98 Clavero “The indigenous rights of participation”, above at note 91 at 47.

99 Ghanaian proverb, meaning that the rich man cannot know the poor man's problems unless he “gets off the donkey” and walks on the ground or unless he asks the poor man; see T Dogbe “The one who rides the donkey does not know the ground is hot: CEDEP's involvement in the Ghana PPA”, available at: <http://www.iied.org/pubs/pdfs/G01655.pdf> (last accessed 28 May 2009).

100 ILO Convention 169, art 7(1) (emphasis added).

101 Ibid.

102 Id, art 7(3).

103 Chambers Challenging the Professions, above at note 69 at 10.

104 Aarhus Convention, art 6(7).

105 Id, art 6(3).

106 Id, art 6(8).

107 Id, art 6(9).

108 Id, art 6(1)(a).

109 Ecuador Report, above at note 93, paras 13–15.

110 Ibid.

111 Id, para 44.

112 Ibid.

113 Id, para 45(1)–(2).

114 It is for this reason that one finds in the literature “an amalgam of vague formulations and selective perceptions. Statements about the lack of an effective definition of community have appeared so frequently in the literature that it is clear we need to ask not only why has the term proved so problematic, but why it has maintained its popularity in the face of its acknowledged shortcomings”: Bryson, L and Mowbray, M “Community: The spray-on solution” (1981) 16/4Australian Journal of Social Issues 255 at 256Google Scholar. In 1955, Hillery found in the literature 94 definitions of community and stated that the “94 definitions … [were] not all of the definitions of the community”: Hillery, G Jr “Definitions of community: Areas of agreement” (1955) 20/2Rural Sociology 111 at 112Google Scholar.

115 UNDP Niger Delta Human Development Report, above at note 1 at 21.

116 Ibid.

117 Id at 113.

118 Id at 15.

119 Ibid.

120 Kellert, SR, Mehta, JI, Ebbin, SA and Lichtenfeld, LL “Community natural resource management: Promise, rhetoric, and reality” (2000) 13/8Society and Natural Resources 705 at 711–12Google Scholar.

121 L Amis, P Brew and C Ersmarker “Human rights: It is your business: The case for corporate engagement” (2005, International Business Leaders Forum) at 9, available at: <http://www.iblf.org/~/media/Files/Resources/Publications/Publicationsv1/HumanRights_ItIsYourBusiness_2005.ashx> (last accessed 28 May 2008).

122 J Switzer “Armed conflict and natural resources: The case of the minerals sector” (discussion paper for the mining, minerals and sustainable development project of the International Institute for Environment and Development/World Business Council for Sustainable Development, July 2001) at 11, available at: <http://www.iied.org/mmsd_pdfs/jason_switzer.pdf> (last accessed 28 May 2008).

123 There was recently a critical case in the Etekwuru community of Egbema, Imo State, an oil community known for its unparalleled peace in the Niger Delta, where negotiations for a memorandum of understanding with Nigeria Agip Oil Company (Agip) had broken down because, mid-way through the negotiations, Agip sought unilaterally to reverse decisions already reached. The community felt that Agip was taking it for granted. It threatened to disrupt Agip's oil operations in the area if Agip did not change its position.

124 Switzer “Armed conflict and natural resources”, above at note 122 at 19.

125 Ross “Mineral wealth and equitable development”, above at note 82 at 28–29.

126 Id at 26.

127 Ibid. In Nigeria, it is arguably due to the government's self-consciousness about its lack of credibility among the oil bearing region that it is frantically seeking international support in its effort to mollify the people of the region.

128 The Commission on Global Governance Our Global Neighbourhood: The Report of the Commission on Global Governance (1995, Oxford University Press) at 22.

129 Tanner, F “Conflict prevention and conflict resolution: Limits of unilateralism” (2000) 839 International Review of the Red Cross 541 at 553CrossRefGoogle Scholar, available at: <http://www.icrc.org/Web/Eng/siteeng0.nsf/html/57JQQ2> (last accessed 28 May 2008).

130 Ross “Mineral wealth and equitable development”, above at note 82 at 27.

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