Littoral or Traditional boundaries: Questions bordering on Intellectual Merit and Discrimination

By

Kayode Ososanya
(Public Health Research Fellow)
Chicago, USA
 

First and foremost, let me start by stating that I am an Ijebu man whose hometown has no shore or coastline (littoral) boundaries. As such there is no direct personal benefit to me or members of my hometown community from resources located in water-bound areas of the Nigerian coastline.



Much has been written about the critical pivot upon which last Friday’s ruling of the Nigerian Supreme Court on the on-shore/offshore suit was rested. My specific grouse concerns that aspect on the on-shore/offshore ruling. Two closely related issues were at stake. The first one concerns affirmation of ownership of certain geographical areas. The second which is closely related to the first concerns determination of who has ownership rights to resources within these geographical areas



As geographical areas of communities go, the usual pattern is that a group people living together in the same area divide the total area available to them roughly into two. One part is cleared, dedicated and designated as the “living area portion” whereby they erect structures to live in. Though this is often land based, some “Ilaje” have been known to erect their living structures over bodies of water and this pattern is quite common in coastal areas of Nigeria.



The remaining portion of the geographical area available to communities which constitutes the “wilderness portion” of their domain area is left relatively unaltered except for economic purposes and reserved for the exploitation of its resources for the
benefit of the community. In fact for the most part, the economic prosperity of the community depends to a very large extent on this “wilderness portion”. For instance improper use or pollution of this wilderness portion has severe repercussions vis-a-vis
the viability of that community. For communities bound by large bodies of water the ‘wilderness portion’ of their geographical area invariably includes part or all of the areas covered by water; how vast this is depends on their time-honoured historical and
other claims. That is why the Ijebu man does not go to the coastline and contest exploitation of the fishing rights in a lagoonbordering an Ijaw village! The fish and other resources in that body of water belongs to the Ijaw village as far as their traditional
influence goes, just as in the same way it will be foolish of an Ijaw man to move hinterland and begin to contest rights to hunting antelope in the forest bordering the Ijebu man’s village.



I don’t know how it came to be decided that the critical issue for that decision should be the seaward boundary of constituent communities (whether organized as states, local government councils, towns villages, etc), but by whatever means it took to arrive at that decision a great injustice to the principle of ownership by historical precedence was clearly perpetuated and in the process also, formalized unconstitutional discrimination against some constituent communities of this federation was established. I sincerely believe that the ploy to distract attention from the real fundamental and basic questions raised above and concentrate attention on a side issue was rather unfortunate. I am told that legal arguments follow the principle of logical reasoning; then perhaps we need to take a short trek into logical reasoning to deduce the intellectual merit of the ruling on on-shore/offshore suit.



We will begin with a simple question. How did Nigeria come about having the right to make any claims in the disputed geographical areas under discussion? Since there has never been any argument to the contrary that historically certain communities had been operating (and hence have historical precedence of ownership to resources therein, etc.) in these geographical areas before Nigeria became a legal entity; then the entity called Nigeria could only have acquired these rights by one of three means.



One is that soon after creation, Nigeria went to war against these communities and defeated them and in the process took over those rights and they being vassal states had lost their rights to Nigeria by reason of conquest. To the best of my knowledge this
was not so.



Two is that soon after creation, Nigeria had made a pact with another country in which that country (which hitherto had such rights) had ceded rights to the disputed bodies of water to Nigeria. I also have no information at present to support this view.



Three: Since these communities form the federating units; at the time these communities came to be part of these federating units, did they at any time cede, disown or totally relinquish (i.e. without any future rights whatsoever) control of their resources (as attested to by legal documents) to the central government? At present, I have no information to the effect that such was the case; i.e. that these communities handed over all their right of claim to resources within their domain to the Nigerian government.



Lastly, if these communities that have historical claims to these areas were not part of the Nigerian federation, would it have been possible for Nigeria to lay claims to the resources in these areas? The answer of course is a resounding No!



What is obvious then is that Nigeria’s claim to the resources in these areas derive SOLELY from participation of these communities in the Nigerian federation. Without their participation, Nigeria would have no basis for such claims.



Given that it is the presence of those communities that made it possible for Nigeria to lay such a claim; then does Nigeria as an entity have more rights over those resources to the exclusion of the constituent communities that made access to the resources possible in the first place? That should have been the critical issue to which the ruling should have addressed itself and not sought to divert our attention by bringing up a littoral argument that is faulted by the fact that these communities are not vassals of the Nigerian nation



This brings us then to the first poser “So how come then that Nigeria has exclusive and sole claims to the resources (in the areas which historically belongs to these communities) to the exclusion of the communities that made it possible in the first place?” There is something illogical there I tell you.



Now we move on to the second part of the discussion. What about other communities in the federation, are they treated the same way? In that same ruling, we are told that the rights of the land-bound communities to resources located in their “wilderness portion” is recognized and as a result they should expect not less than 13% to be set aside for them to share from proceeds made from exploiting the resources in their domain area. However, their water-bound contemporaries are lesser beings and should expect nothing from exploitation of resources in their “wilderness portion” If that is not discrimination, then tell me what is it?



For most of these communities, that would restrict their resource base to only that available in the lived-in portion of their domain, technically by this ruling, they have no rights to resources beyond this point even though it is acknowledged that the area belongs to them. How come then it is not OK to acknowledge the rights of these communities to the resources in all the areas of their domain but it is OK to leave some other communities rights to all the resources in all of their geographical domain? The answer of course is DISCRIMINATION.



I disagree that the fundamental issue in that case should have been determination of littoral boundaries. It should have been determination of what constitute the traditional boundaries of sea-bound communities. Was the low level mark the farthest extent of commercial, entrepreneural, and technological activities of these communities before they joined the federation now known as Nigeria? In Nigeria we mostly base determination of land and other boundaries boundaries on traditional claims (even Nigeria is relying on the same argument in its dispute with Cameroon over Bakassi), why should that system now be sidestepped to use another standard for sea-bound communities in the same federation? Why two sets of standards to determine boundaries for communities who are in the same one federation?



For communities with land borders, the issue addressed mostly when determining boundary issues has been traditional claims; how come when it comes to determination of boundaries for communities living near vast bodies water we now use a different
ruler? First off this sounds like a case of one rule for the goose and one rule for the gander. Are sea-bound communities not legitimate human communities that they should be subjected to an inferior method to determine their boundaries? We seem to
be forgetting that these bodies of water are actually resting on land only that the land is situated under the water! In a sense then, exploitation of resources situated above ground in land-based communities is actually the same as exploitation of resources based in bodies of water; since both are situated above the ground. So why use different methods to determine boundaries?



Saying that the decision is only for the purpose of revenue allocation begs the issue. Common application will soon begin to cite the ruling to deny these communities the labour of their forefathers while other communities in the same Nigeria federation will
continue to enjoy theirs just because they are land bound. [vide: a Federal Government directive to the Accountant General Of the Federation (AGF) in the week following the ruling had stated “…Another implication is that the ownership of the offshore oil fields belongs to the federal government of Nigeria…”]



Perhaps more revealing is that no attempt was made to establish the traditional geographical boundaries within the water bodies these communities lay claim to. This could have been determined by the extent of their unchallenged traditional activities in these bodies of water. That would give a better picture of the extent of the ‘wilderness portion’ of their domain. Doing so of course confers legitimacy to their claims, so it is better to avoid that principle?



Other questions on that ruling of course remain, poignant amongst which is the relevance of using the littoral yardstick to determine boundaries in a federation. In those countries where the “littoral determination” has been used, what is the historical origin of the relationship between the central government and its constituent states? Did they originate as vassals (and hence had lost rights to certain resources by reason of conquest) or were they a collection of hitherto communities of similar political standing? It is most unwise to use the practice of littoral property in UK to determine such a dispute in Nigeria. For one, the communities which form the two countries did not come together the same way, we don’t run the same type of government; ours is a federation, theirs is not. Most important however, we have historical precedence of our own in how we determine
boundaries which respects the individuality of each community at the time we came together to form Nigeria. (Whatever happened to the doctrine of “when the written law is obscure …you follow the unwritten law – the law of precedence”) Abundant examples exist within our communities as to how we determine who owns which resources.



Some of the communities that are part of UK today started their life in that union as vassals of the central government in London. Can you say that of any community in Nigeria, that is, that they started as vassals of Nigeria? So how can anyone want
to believe there is enough similarity between the two countries’ system of government to allow a crossover of unknown practice of property determination? Why should anyone want to impose a medieval system of property division on us who are in a federation of hitherto relatively independent communities?



Why isn’t there a hereditary higher house of landed gentry [a reminder of the master - servant doctrine] as our upper house of parliament as is done in Britain? - an attestation to the fact that their path to the type of government they have is way different from ours and by extension, their methods of determining or dividing resources between the central government and its constituent states is also very much different from ours. We don’t even have a central queen (or king!). The key issue here is that the relationship of the central government in UK to its constituent communities or states is not the same as the
relationship between our central government here in Nigeria and the communities or states that make up Nigeria. In short the use of British determined littoral boundary has NO RELEVANCE in the Nigerian situation. To argue otherwise is to say that we should have one Queen (or King) and an upper house of Lords instead of the Senate.



A great injustice is being perpetuated against these communities and all men of conscience who have any claim to fairness cannot fail to see that these people are being discriminated against. What we are saying by that Supreme Court ruling is that
they have less rights that those of us who were lucky to have come from land bound areas. Maybe some can justify that, I cannot. You see, bounty from the waters his ancestors used to fish in and defend from intruders from the neighbouring communities with their life and blood no longer belongs to them simply because they were innocently co-opted to join the experiment called Nigeria. Meanwhile their cousins from the mother-side who reside on land get to have some measure of compensation and control over resources on the land of their forbears.



Anyway, all hope is not lost. Freedom from discrimination is a fundamental right of persons and groups of persons protected by the constitution which properly adjudicated overrides any secondary attempt to deny people their rights. Fellow Nigerians from
the South-South, your journey to the courts still remain. You need to go to the courts to protect your right to freedom from discrimination that is being employed to rob you of your heritage. Any ruling that establishes, promotes or seeks to perpetuate discrimination against any of the constituent communities of this federation cannot be said to be acting in the best interest of the country. Thank You.




April 2002