Rights for the River Ethiope, Nigeria

Ethiope river blog pic.jpg

By Timothy W. Collins

I.  Introduction

Earth Law Center recently partnered with the River Ethiope Trust Foundation (“RETFON”) to secure rights recognition for the River Ethiope in Nigeria, to assist with RETFON’s current efforts and to work towards establishing the River as a legal entity possessing rights. As a result, the River would have a broad suite of recognized legal rights that would set it on a path to permanent restoration. It would also have standing to utilize the court system as a plaintiff in search of injunctive relief or damages, as necessary.[1] The River Ethiope would be the first waterway in Africa to possess legal rights.  

II.  The River Ethiope

The River Ethiope is located in the Delta State of Nigeria (“DSN”). The DSN is a geographic component of the South-South geo-political zone, and yields oil and agriculture. The River runs from the Umuaja community in the Ukwuani Local Government Area (“LGA”) and meets the sea at the Sapele LGA. The River flows for approximately 70km through four LGAs: Ukwuani, Ethiope East, Okpe and Sapele. These LGAs combine for an estimated population of 1.7 million people as of 2013.[2]

The River is a place of worship for adherents to the traditional Olokun and Igbe religions. It famously originates at the base of a giant cottonwood tree.[3] The area surrounding the source is a specific concern; human visitation over time has destroyed precious root systems that filter groundwater and prevent erosion. A concentration of vehicular traffic creates high levels of airborne pollutants as well. In the now familiar environmental irony human interest and appreciation endangers the object(s) humanity seeks to see and appreciate.

Nigeria is the third most biologically diverse country in Africa with regards to flora and fauna, a ranking that is currently endangered due to largely unregulated deforestation, farming, spreading urban communities and industrialization.[4]

III. The River Ethiope Trust Foundation

RETFON’s mission is to protect the River Ethiope and to defend the rights of the communities that depend on it. RETFON opposes development projects that degrade water quality, and encourages sustainable innovation to meet needs for water, energy, and protection from destructive floods and coastal erosions. To achieve this mission, RETFON collaborates with local, regional, national and international network of grassroots movements, communities, individuals, social clubs, Non-Governmental Organizations and corporate partners. Through research, education, advocacy and legal action RETFON works to halt destructive activities, to address the legacies of sustainable activities, to improve development policies and practices of government and to promote water and energy solutions for a just and amicable society. RETFON’s activities are planned to serve as a model for all rivers in Nigeria.[5]

IV. Threats to the River

Nigeria has one of the worst river degradation conditions of any country in the world. To date, dedicated deliberate efforts to reverse this growing problem have proven inadequate, for reasons addressed below.  Climate change, uninhibited industrial/urban development combine to measurably worsen the condition as time passes.[6]

Historically, the River Ethiope has been used extensively for occupational and recreational activities: fishing, swimming, clothes washing and bathing. These activities have no measurable environmental impact on their own merits. The River has been used as a source of disposal for industrial waste and consumer products, as well, and is subject to further contamination during the rainy season when it typically overflows its banks.[7] When the floodwaters recede they carry runoff in the form of additional domestic waste and agricultural by-products like chemical fertilizers and pesticides. As noted, tourism and religious activities pose additional threats due to the significant amount of visitors in sensitive areas.

River Ethiope currently fails to meet the water quality standard set by the World Health Organization (“WHO”), a failing that is shared by every river in Nigeria.[8] This failure to meet WHO standards renders the waters of the River at best useless and at worst dangerous for human interaction. The pollution and continued degradation also pose a threat to entire inland ecosystems and ultimately to coastal regions of the Atlantic Ocean.

V.  RETFON’S Approach

RETFON has displayed uncommon patience and determination over the past twenty-six years. President and Founder Irekefe V. Dafe identifies partnership building, resource mobilization, flexibility and leadership as key components of the learning process. Mr. Dafe describes RETFON’s approach as focusing on (1) partnership and collaboration, (2) community mobilization, (3) holistic emphasis, (4) planning, evaluation and monitoring, and (5) long-term sustainability, all practiced under the principles of Eco-hydrology and Integrated Water Resource Management (“IWRM”). RETFON plans to proceed towards its goals of full implementation of IWRM principles, developing and maintaining proper legal and institutional frameworks and the establishment of either an Inter-Local Government Commission for the preservation of the River or a River Ethiope Watershed Development Authority by the four above-referenced LGAs. To achieve these goals RETFON must overcome funding challenges to remedy a lack of scientific data, poverty and ignorance, the lack of an institutional framework, and inadequate government policies and programs, and the failure to enforce existing laws and regulations.  

VI.  Timeline: A Condensed History of RETFON’s Activities to Date

Since 1992, RETFON has worked to protect the River Ethiope by building relationships with both local civilians and businesses (“stakeholders”) and DSN and Federal governments, reaching out in both directions simultaneously. Governmental recognition and assistance legitimizes the Trust in the eyes the stakeholders; stakeholder perception creates reciprocal awareness by the governments. This symbiosis extrapolates to a model of an as yet aspirational relationship between the community and the River, i.e., two concerned parties acting in concert for mutual benefit.            

RETFON recent activities to protect the River Ethiope include the following:

  • In February of 1999, RETFON organized the first official joint inspection of the River by DSN and Federal Government of Nigeria (“FGN”) officials. The result was the immediate closure of several industrial facilities whose practices were identified as harmful to the River. In one instance the inspection discovered a rubber processing plant directly discharging untreated rubber waste into the River, not far upstream from communities who routinely use the River for bathing and as a source of drinking water. These closures significantly disrupted what had been a steady source of pollution and acted as a deterrent for future violators who chose to operate without an approved Environmental Impact Assessment (“EIA”).
  • Building on this momentum, RETFON petitioned the Federal Government through FEPA to intervene in the development of a tourism facility by the hospitality company Hotel and Catering Services Ltd. in April of 1999. The company was engaged in a development effort on the banks of the River without the required EIA, seemingly oblivious to the idea that their actions were harming the source of their potential commercial success. FEPA issued a directive to halt further development until the EIA had been made and approved. When village leaders questioned why RETFON would oppose local development, RETFON highlighted its commitment to preserving and restoring the environment, which benefits both ecosystems and local communities that rely upon healthy waterways.
  • RETFON organized a second joint inspection inspection of the River in February 2001. The inspection team was made up of DSN government executives and members of the DSN House of Assembly, led by a member of the DSN Commission for Special Duties the group focused on gully erosion near the heavily trafficked source of the River. The inspection efforts yielded the immediate award of a contract for the control of gully erosion in the Ebede community, approximately five kilometers from the River source. Controlling gully erosion is crucial to reducing the amount of contaminated storm water runoff. This type of husbandry further demonstrates RETFON’s approach of simultaneously solving a pressing issue while building public interest and support—in this case stakeholders were inspired by the idea of two arms of their state government working together to perform actions popularly viewed as restrictive towards industry and commerce.
  • In June 2012 RETFON was awarded a United Nations Development Plan-Global Environment Facility grant (UNDP-GEF).[9] The UNDP-GEF grant supported a project to restore and conserve the source of the River. The tangible efforts were afforestation and the development of a plant nursery. Less visible but equally important results were leading by example, the fostering of environmental awareness, policy reform advocacy, emphasis on environmental monitoring and evaluation, and the opportunity for the DSN government and stakeholders to work together towards a mutually beneficial cause.

RETFON has continued to work with local stakeholders and government to defend the health of the River Ethiope and surrounding communities. RETFON offers workshops and educational opportunities, including outreach to University students. Student involvement is understated in its importance; RETFON offers students what is often their first application of theory to practice. Furthermore, the introduction of students to environmental awareness helps to create a generation that considers such awareness normal as opposed to radical.

VII.  The Rights of Nature Approach

Earth Law Center (ELC) is proud to support RETFON on a new campaign to seek legal rights for the River Ethiope. To date, RETFON and other leaders have made remarkable progress in protecting the River Ethiope by working with local stakeholders, enforcing current environmental laws and calling for policy change where necessary. However, RETFON recognizes that the only permanent method to restore this river to health is to give it legal rights that are equivalent to those enjoyed by humans and other entities. And considering the immense ecological, religious and cultural significance of the river, it is a prime candidate to be the first river in Africa to have its inherent rights recognized.

Although achieving a substantial paradigm shift like legal rights of rivers is always difficult, RETFON enjoys support from community leaders, governmental departments, and national and international actors. In particular, the younger generation is deeply inspired to protect the environment in Nigeria. Therefore we are confident that the campaign will be a success.

What are the rights to which the River Ethiope might be entitled? Earth Law Center (“ELC”) enumerated the basic rights to which all rivers are entitled in the Universal Declaration of the Rights of Rivers. At baseline, they consist of (1) the right to flow, (2) the rights to perform essential functions within its ecosystem, (3) the right to be free from pollution, (4) the right to be fed from sustainable aquifers, (5) the rights to biodiversity and (6) the right to restoration.[10]

These rights are intentionally drafted broadly to give stakeholders and government the opportunity to adapt them to local needs. Under RETFON’s leadership, and considering the wisdom and input of local communities, ELC’s legal experts will provide counsel on how to define and implement the rights of the River Ethiope. And in the meanwhile, RETFON’s bilateral efforts will continue to build precedent until a valid argument can be made that the River Ethiope is exercising its legal rights in every capacity, and all that remains is formal recognition.

VIII.  Next Steps

ELC has partnered with RETFON in our shared goal of establishing rights of nature, including rights of waterways. The next step is for ELC to develop a full awareness and understanding of DSN and FNG structures and procedures to plan and communicate intelligently. We will then begin discussions with RETFON on how to best provide legal rights for the River Ethiope, drawing from ELC’s international experience and RETFON’s decades of local success. RETFON will then work with local communities to ensure that rights for the River maximize human and environmental well-being. We are extremely excited for the months to come.

IX.  How to Help

To assist our efforts either with this specific partnership or in general please look at the following options:

  1.  Donate to ELC

  2.  Volunteer with ELC

  3.  Contact ELC if you want to work on your own river rights campaign

  4.  Have your organization sign the Declaration of River Rights document

  5.  Connect with us on social media and sign up for our newsletter

X.  Conclusion

RETFON’s efforts have gone a long way at the “ground level” by securing and performing manual project designed for immediate impact. They can be viewed as individual bricks in a foundation upon which to construct RETFON’s long-term goals of legitimacy and awareness, both by stakeholders and the State and Federal governments. And while these victories are necessary and inspiring, they can only be made permanent by establishing legal rights for rivers.

Ideally this one instance will be the first domino to fall in the extended effort to address and reverse the degradation of all Nigerian rivers. While at present difficult to fathom, it is important to remember that sweeping changes of this kind are preceded by the suffragette and Civil Rights movements in the United States, and were met by a range of oppositional tactic while the voting public struggled with the introduction of groundbreaking departures from tradition.[11] By establishing legal rights for the River Ethiope, we hope to create a replicable model for all – to usher in a new era of living in harmony with the waterways upon which we rely.

XI. Afterword

My thanks go to Mr. Irekefe V. Dafe, President and Founder of the River Ethiope Trust Foundation for his valuable assistance in providing background material and educating ELC on RETFON’s impressive efforts and history. It is safe to assume that any missing citations are the problem children of unpublished documents sent to ELC by Mr. Dafe, and equally safe to assume that, as such, the facts are trustworthy. Although I have done my best to paraphrase rather than simply copying and pasting there is a fine line between the two results, made finer by my fear of distorting the meaning and emphasis. Please forgive me if such a misrepresentation has occurred, and I look forward to assisting in the development of this partnership.

[1] Author’s note: as yet unexplored and without precedent, that same standard exposes the river to liability as a defendant; it is difficult to imagine a set of circumstances giving rise to litigation of this kind, and the issue is academic at the moment and of course dependent on future events.

[2] https://www.internationalrivers.org/resources/irikkefe-v-dafe-river-ethiope-7850

[3] https:en.wikipedia.org/wiki/Delta_State

[4] F.O. Arimoro, E.A. Kaine, B.O. Krumale, & S. Obiegba, "Ecological Observations, Preliminary Checklist and Conservation of Mammals Occurring Within the Eastern Boundaries of Ethiope River, Niger Delta Area of Nigeria," J Biodivers Biopros Dev 1: 104 (2014) at: https://www.omicsonline.org/open-access/ecological-observations-preliminary-checklist-and-conservation-of-mammals-occurring-within-the-eastern-boundaries-of-ethiope-river-niger-2376- 0214.1000104.php?aid=26278

[5] https://www.facebook.com/retfon/

[6] Dafe V. Irikefe and Irwin A. Akpoborie, "Implementing IWRM in the Ethiope River Watershed: The Role of Advocacy," Kaduna NIGERIA Workshop Paperat: http://mucp-mfit.org/wp-content/uploads/Dafe-and-Akpoborie-_-IWRM-at-ERC-Compatibility-Mode.pdf

[7] S.A. Osakwe and B.O. Peretiemo-Clarke, "Evaluation of Heavy Metals in Sediments of River Ethiope, Delta State, Nigeria," 31st CSN Conference paper 611-613 (2008) at: https://pdfs.semanticscholar.org/a2b1/5047a38c416e5b5b798ddb1b55d2e8a7c81c.pdf

[8] http://www.environewsnigeria.com/wrd-nigeria- rivers-fall- standards/

[9] http://www.undp.org/content/undp/en/home/funding/funding-channels.html

[10] https://www.earthlawcenter.org/river-rights/

[11] Pecharroman, Lidia Cano, Rights of Nature: Rivers That Can Stand in Court.  AC4, Columbia University 2018, 2; citing Stone, C.D. Should Trees Have Standing?⎯Towards Legal Rights for Natural Objects.  South. Calif. Law Rev. 1972, 45, 450-501.