Local Content and Sustainable Development in Global Energy Markets

Edited by Damilola S. Olawuyi

Local Content and Sustainable Development in Global Energy Markets

Local Content and Sustainable Development in Global Energy Markets analyses the topical and contentious issue of the critical intersections between local content requirements (LCRs) and the implementation of sustainable development treaties in global energy markets including Africa, Asia, Europe, North America, Latin America, South America, Australasia and the Middle East While LCRs generally aim to boost domestic value creation and economic growth, inappropriately designed LCRs could produce negative social, human rights and environmental outcomes, and a misalignment of a country's fiscal policies and global sustainable development goals. These unintended outcomes may ultimately serve as disincentive to foreign participation in a country's energy market. This book outlines the guiding principles of a sustainable and rights-based approach – focusing on transparency, accountability, gender justice and other human rights issues – to the design, application and implementation of LCRs in global energy markets to avoid misalignments.

Promoting transparency in Central African mineral development

Chilenye Nwapi

Abstract

With growing international interest in mineral resources in Central Africa, the importance of transparency in resource development cannot be overemphasized. Without transparency, the region cannot maximize revenues from resources. Although the importance of transparency is beginning to be recognized, many factors can hold back the gains of transparency from resulting in real economic development for the countries involved. This paper reviews current financial, economic, and development literature for Central African countries, with a focus on identifying underlying conditions and specific transactional conditions impacting the effectiveness of transparency in mining development in the region.

Keywords: Central Africa, Mineral development, Subnational transparency, Transparency

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Land Ownership, Mineral Development and Agriculture in Nigeria: An Examination of Key Issues and Challenges

Chilenye Nwapi

Abstract

This paper analyzes the interface between mineral development and agriculture in the context of land ownership and control in Nigeria. It critically examines the key issues regarding land ownership and control, examines the rules governing use of land for mineral development under the Nigerian Petroleum Act and the Minerals and Mining Act, and examines the nature of the rights granted to oil and gas and mineral operators with a view to ascertaining how these interface with the rights of agricultural landowners. The overall aim is to identify and analyze how the conflict between mineral development and agriculture can be reconciled in Nigeria within the context of land ownership and control.

Keywords: Land Ownership, Agriculture, Mineral Development, Eminent Domain, Nigeria

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Environmental Sentencing Policy in Alberta: A Critical Review

Chilenye Nwapi

Abstract

This paper reviews the sentencing policy in environmental cases in Alberta, Canada with a view to identifying the underlying theoretical justifications, the prevailing sentencing options and the principles governing their application, and the factors that influence environmental sentencing generally in Alberta. The ultimate goal is to assess the application of the sentencing principles and factors to determine their usefulness and potential effectiveness. After analyzing the legal nature of environmental offences, the paper proceeds to analyze the theories informing environmental sentencing in Alberta. This is followed by a discussion of the available environmental sentencing options in Alberta and lastly by an analysis of the factors considered in the application of those options. A major conclusion of this paper is that there appears to be a deliberate policy towards increased fines – both traditional fines (fines simpliciter) and non-traditional fines (such as fines imposed in the nature of creative sentencing). This policy reflects increasing awareness in Alberta of the need to toughen up on environmental criminals.

Keywords: Environmental sentencing, Creative sentencing, Alberta

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Governance considerations relating to social impact assessments for mining development in African communities

Abstract

This paper explores how social impact assessments (SIAs) can be applied productively in mining development in African societies characterised by weak regulatory structures and ethnic diversity. It evaluates the nature of the social risks associated with mining development in Africa and examines the concept of SIA as a tool for mitigating those risks. Most importantly, it considers the factors that should be taken into account in the design and implementation of SIA programs in ethnically diverse African regions. One of the paper's central theses is that within-group perceptions of procedural justice are instrumental to the success of participatory processes for SIAs in mining development in Africa.

Keywords: Social impact assessment, Mining development, Ethnic diversity, Community, Participation, Stakeholders, Representativity

Neoliberal Extractive Resource Governance Frameworks and Interregional Economic Inequality in the Global South: Strengthening regional competitiveness through local content …

Chilenye Nwapi

Abstract

This paper examines how, within a neoliberal extractive resource governance framework, countries in the global South can forge their own development path successfully. The paper proceeds from the standpoint that the meaning of neoliberalism is not cast in stone and that it is possible within a neoliberal framework for countries in the global South to formulate new policies that are capable of lifting them out of poverty and inequality. The paper focuses on how the global South may use the local content policy in extractive resource governance to strengthen regional competitiveness and address interregional inequalities. It argues that a local content policy designed to give deliberate consideration to the regions where the resource extraction takes place, accompanied by an income redistribution policy administered by the central government, has a great potential to engender regional competitiveness and consequently address interregional inequalities within countries in the global South.

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The international legal regime for sustainable soil

Chilenye Nwapi

Abstract

 Work on the development of adequate international and national legal frameworks for sustainable soils has been underway for over a decade. Significantly, the initial drafting work on the need for an international convention or other instrument on soil came from the soil science community. In 1999, as a result of an approach from soil scientists to the IUCN Commission on Environmental Law a Specialist Group on Sustainable Soils and Desertification was established in order to investigate both international and national legal regimes to promote the sustainable use of soil. This paper looks at the development of an international legal instrument on sustainable soils, and explores the scope and range of possibilities for the form of such an instrument. It then canvasses the basic elements that should be included in the drafting of national of national legislation. It concludes by making some preliminary suggestions regarding the development of legal and institutional frameworks for soil management in Balkan countries.

Key words: Legal protection of soil, international and national legal frameworks

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Book Review: The Governance Gap: Extractive Industries, Human Rights, and the Home State Advantage, by Penelope Simons and Audrey Mackli

Chilenye Nwapi

Abstract

Penelope Simons and Audrey Macklin's book, The Governance Gap: Extractive Industries, Human Rights, and the Home State Advantage is a valuable contribution for researchers on the extraterritorial activities of the extractive sector, and in particular its impacts on the environment and human rights. The authors question what the development of domestic and international regulation would look like if governments took seriously the duty to protect human rights from the activities of their extractive sector corporations. The proposal outlined in the book will be of interest to academics, politicians, and public servants working towards establishing a governing framework aligned with the much discussed and debated United Nations Guiding Principles on Business and Human Rights. However, certain aspects of the authors' proposal are impracticable and not the best alternative for addressing the problem of extraterritorial wrongdoing by the extractive sector. A more comprehensive analysis of private law strategies would have benefited the readers in communicating a thorough account of this fundamentally important issue of legal regulation. Keywords: Extractive Industries, United Nations Guiding Principles, Human Rights

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Planning for the Future: The Creation of New Corridors for Energy Infrastructure in Alberta, Canada

 Chilenye Nwapi

Abstract

This paper examines two strategic land-use planning statutes created by the Government of the province of Alberta, Canada to address energy infrastructure and environmental challenges: the Alberta Land Stewardship Act (ALSA) and the Land Assembly Project Area Act (LAPAA). ALSA incorporates an ecosystem management approach for land and resource management and mandates the creation of "integrated planning regions" and the development of plans that reflect regional differences in available renewable and non-renewable resources. LAPAA is intended to facilitate the creation of corridors for major energy infrastructure projects by empowering the Lieutenant Governor in Council to designate land in advance for future projects and to impose restrictions on the use of the designated land by the landowner. What are the short and long term implications of such restrictions for landowners? This article analyzes the two acts and considers laws from other jurisdictions to provide perspectives on how other jurisdictions are managing the challenges of building new energy infrastructure.

Keywords: Energy corridors, land use planning, property rights, public consultation, Alberta

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Resource Extraction in the Courtroom: The Significance of Choc v. Hudbay Minerals Inc for the Future of Transnational Justice in Canada

Chilenye Nwapi

Abstract

Canada has not seen much transnational litigation along the lines of the United States Alien Tort Statute. Until the decision of the Superior Court of Ontario in Choc v Hudbay Mineral Inc., no such case had survived pretrial challenges. This article explores the significance of the Hudbay decision for the future of transnational justice in Canada. The paper argues that Hudbay is significant for its attempt to recognize a novel duty of care between Canadian corporations and local communities harmed by the activities of Canadian corporations’ subsidiaries abroad. It is also significant for the plaintiffs’ successful use of the direct liability theory. Lastly, the decision underscored the need for plaintiff lawyers to place sufficient particulars of all allegations on the pleadings, a lesson that must have been learned from the failure of the previous cases.

Keywords: Transnational litigation, transnational corporations, duty of care, corporate complicity in human rights abuses

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A Necessary Look at Necessity Jurisdiction

 Chilenye Nwapi

Abstract

While the doctrine of necessity jurisdiction is relatively new globally, it is fast garnering academic, legislative, and judicial acceptance. However, its exact nature and appropriate scope of application occupy a fringe position in both jurisprudence and literature. This article is an attempt to explore the nature and scope of the doctrine with a view to suggesting appropriate limits to its application. It explores the doctrines legislative and jurisprudential development in Canada as well as its international validity.

Keywords: Necessity Jurisdiction; Forum Necessitatis; Emergency Jurisdiction; Access to Justice

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Enhancing the Effectiveness of Transparency in Extractive Resource Governance: A Nigerian Case Study

 Chilenye Nwapi

Abstract

Nigeria has been acclaimed as a model for the implementation of the principles established under the Extractive Industries Transparency Initiative (EITI). The goal of the principles is to promote accountability and effective management of resource revenues, which in turn would result in improvements in public welfare and better developmental outcomes, such as a more equitable distribution of wealth, improved socio-economic conditions, and poverty alleviation. However, a look at the socioeconomic condition in Nigeria raises questions regarding the impact of the achievements of NEITI on public welfare. Corruption remains endemic in the oil and gas industry, the sector on which the implementation of the EITI principles has been almost entirely focused. This article analyzes Nigeria’s experience with the implementation of NEITI with a view to theorizing about the reasons behind the lack of, or minimal,  improvements in the lives of ordinary Nigerians as well as the persistence of corruption despite Nigeria’s acclaimed achievements in EITI implementation. The article argues that while EITI is an important driver of economic progress in Nigeria, it should not be viewed as enough to overcome the broader problems hindering improvements in public welfare. Other factors are necessary to translate the gains of EITI into visible public welfare improvements. The article identifies those factors and analyzes how they hold back the gains of EITI in Nigeria as well as its implications for emerging extractive countries signing or considering signing up with EITI.

Keywords: extractive resource governance, transparency, public welfare improvements, corruption

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Environmental Impact Assessment Process for Oil, Gas and Mining Projects in Nigeria: A Critical Analysis Article

 Chilenye Nwapi

Abstract

This article examines legislation and practice concerning the environmental impact assessment (EIA) process for oil and gas projects in Nigeria. It argues that although EIAs have become a standard legal requirement for all oil, gas and mining projects in Nigeria, not much is achieved in terms of managing the impacts of these projects. The reasons are legion. They range from the lack of political commitment on the part of the government to enforce environmental standards, the scarcity of baseline information against which the environmental impacts can be assessed, and non-implementation, or lack of committed implementation, of EIA reports. The result is that operators carry out EIAs to satisfy the dry letters of regulatory provisions for the purpose of obtaining operational permits. The article recognizes that some improvements have been made in the EIA system relevant to oil and gas development, especially since the inauguration of democracy in Nigeria in 1999. It submits that those changes have not produced any meaningful improvement due to the same factors outlined above.

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Jurisdiction by Necessity and the Regulation of the Transnational Corporate Actor

Chilenye Nwapi

Abstract

This article examines the feasibility of using the jurisdiction by necessity doctrine to promote the accountability of transnational corporations (TNCs) for extraterritorial human and environmental rights abuses committed in developing countries with weak accountability mechanisms. Under the doctrine, a court devoid of jurisdiction may nevertheless hear a dispute where it considers that there is no other court where the dispute may be heard or where the plaintiff may be reasonably expected to bring the action. The article analyzes the inadequacy of existing jurisdictional doctrines in light of the complex web of operations of TNCs, which shields them from the reach of traditional jurisdictional doctrines. After exploring the origin of the jurisdiction by necessity doctrine, the article critically examines the elements of the doctrine to see how they may be applied to the regulation of TNCs. The article argues that the emergence of the jurisdiction by necessity doctrine offers plaintiffs in transnational corporate human rights litigation a new jurisdictional possibility to weigh, as the doctrine has the potential to address some of the jurisdictional difficulties encountered in such litigation.

 Keywords: jurisdiction, necessity jurisdiction, transnational corporations, human rights violations, extraterritorial regulation