1.0 INTRODUCING THE RESEARCH
Over the years the discovery of oil and gas have been identified as a mixed blessing for some oil producing countries. Nigeria, for example – that discovered their natural resources after independence in 1965 has been relatively slow in making economic progress due to poor management of their natural resources and lack of effective regulations.  In the same vein, Russia’s President, Vladimir Putin has said: “Our country is rich, but our people are poor. Even so, the discovery of these natural resources in some countries has created impressive progress from the revenues that lead to the development of the countries examples Botswana, Chile and Mauritius.
However, the exploration and production process of these natural resources in some instances could have a negative effect on the environment and human health especially in terms of burning the natural gas, which is commonly referred to as “flaring.”  Oil producers in Nigeria are notorious for burning this natural gas with the rationale that it is expensive to separate commercial viable associated gas from the oil. Although, the flaring of gas in the Nigeria attracts more attention given to the volume of gas flared since the beginning of commercial oil production. Most countries worldwide are guilty of this practice.
In 2015, The World Bank estimated that the annual volume of natural gas being flared and vented globally is about 147 billion cubic meters (bcm) up from 145 bcm in 2014 and 141 bcm in 2013. The world’s figure shows that Russia tops the world largest gas flaring country, burning about 21 bcm annually, followed by Iraq (16 bcm), Iran (12 bcm), the United States (12 bcm), Venezuela (9 bcm) and Nigeria (8 bcm).
However, countries around the world have realised the potential impact of gas flaring in the environment and seek to address it through the United Nation, Framework Convention on Climate Change (UNFCCC), Kyoto Protocol and other Conventions. In 2001 the World Bank led a Global Gas Flaring Reduction (GGFR) partnership which was initiated to support national efforts to use currently flared gas by promoting effective regulatory frameworks and tackling the constraint on gas utilisation. Several countries have undertaken efforts to reduce flaring by imposing a requirement on oil and gas producers to eliminate emissions of gas. For example, Norway no longer allows the operation of gas flaring without the approval of the ministry of petroleum and energy and also, in 2003, Canada reported 70 percent reduction of gas flaring through monitoring and regulations.
- Background of study
Since the turn of the 20th century, oil and gas production has been a source of development and significant revenue for many countries. Nigeria and the Canada are countries where oil and gas production has taken place on a large scale in the past century. Oil and gas production, like most natural resource exploitation, involves both positive and negative impacts; gas flaring is one of the impacts that has huge negative consequences on many spheres of society. It is widely acknowledged that flaring and venting of associated gas contribute significantly to greenhouse gas (GHG) emissions and has negative impacts on the environment. 
In Nigeria, the practice of gas flaring can be traced to the activities of the colonial oil companies operating in Nigeria (before independence) who prioritised the economic benefits of their activities over the harsh consequence of gas flaring. The Niger Delta is the hub of oil and gas exploration and other attendant activities in Nigeria. Most of the inhabitants of the Niger Delta depend on their environment for their livelihood. Thus, agriculture, fishing and the collection of farm or forest products are the main sources of food for the inhabitants of the Niger Delta. Environmental degradation occasioned by the activities of oil multinational industries poses tremendous challenges to the livelihoods of the inhabitant of the Niger Delta.  Gas flaring can be potentially harmful to the health of the inhabitants as they release varieties of poisonous chemicals which include, xylene, sulphur dioxide, nitrogen dioxides as Benzene, volatile organic compounds and dioxin. Humans exposed to such substances can suffer varieties of respiratory problems which include, asthma, cancer, breathing difficulties and chronic bronchitis. It has been reported that many children in the Niger Delta region have suffered from such illness but have apparently gone un-investigated. These adverse effects have led to the clamour for strict environmental regulation of oil and gas operations, in order to control, reduce or prevent pollution from exploration and exploitations activities.
The Nigeria government has made several efforts in the enactment of legislations, regulating gas flaring in Nigeria. These laws include: the 1969 (Drilling and Production) Regulation, the 1973 Petroleum Amendment Decree, the 1979 Associated Gas Re-Injection Act, the 1983 Associated Gas Re-injection (Amendment) Act, the 1985 Associated Gas Re-injection (Amendment) Decree, the 2004 Associated Gas Re-injection (Amendment) Act, and finally, the 2010 Associated Gas Re-injection Bill. The courts have also confirmed the illegality of gas flaring as seen in the case Gbemre v. Shell Petroleum Development Co.,were the court ‘ordered the respondents and their servants or workers from further flaring of gas in the applicant’s community (Niger Delta) and to take immediate steps to stop the further flaring of gas’.
Nigeria is also a signatory to several international conventions, for example, the Nation Framework Convention and Climate Change (UFCCC) and Kyoto protocol aimed to reduce gas flaring. However, these efforts have been unsuccessful as gas flaring continues unabated and accepted by oil multinationals, either because the laws are defective or that they are not properly implemented or enforced.
In contrast to Nigeria, Alberta, the largest oil producing state in Canada has recorded tremendous success in reducing gas flaring. In Alberta, the environmental regulation cut the amount of natural gas flared by 80.4 percent from 1996 to 2010, reducing GHG emissions by more than eight million tonnes of carbon dioxide equivalent (CO2e). 
The flaring of gas in Canada is governed at both the federal and provincial level. On a national level flaring regulations are enforced by varieties of legislation, including the Canada Oil and Gas Operation Act (COGO), the Canada-Newfoundland Atlantic Accord implementation and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act. This legislation governs the technical and operational aspect of oil and gas production in Canada.
Furthermore, the elimination of all routine associated gas flaring and venting has been the ultimate objective of Alberta since 1926. Thus various laws and regulations were established. They include: The Turner Gas Flaring Act 1932, Alberta Petroleum and Natural Gas Conservation Board 1938 amended to the Energy Resources Conservation Board(ERCB)1971, the National Energy Board 1959, the clean Strategic Alliance 1994, the Oil and Gas Conservation Act 2000 and EUB Directive 060: Upstream Petroleum Industry Flaring, Incinerating and Venting 2006. The state’s efforts are complimented with the national environmental legislations and regulatory institution which have successfully reduced gas flaring to a minimum level in the country.
1.2 Rationale of Study
This research work tends to explore the effectiveness of the legal framework regulating gas flaring in Nigeria and Canada, by analysing the international Conventions, the legislations regulating gas flaring in Nigeria and Alberta Legislations, using the Canadian procedure as applied in Alberta to recommend a solution to the mitigation of gas flaring in Nigeria.
1.3 Objectives of the Research
This dissertation shall access the existing regulatory regime regulating gas flaring in Nigeria and how the regulations affect the operation of the oil companies in Nigeria. This dissertation will evaluate the applicable enforcement strategies and its efficacy in the control of gas flaring in Nigeria. It will also, analyse cases to give a clear ground on the position of the court on the issue of gas flaring
Furthermore, a critical analysis of Alberta in Canada regulations will also be analysed to show the effectiveness of their regulatory regime and their strategies on how the various regulations have successfully eliminated and manage gas flaring in the country. This dissertation seeks to examine whether the Canadian attitude to gas flaring if adopted in Nigeria will be useful to mitigate gas flaring. The research will also make a recommendation that will be helpful in the establishment of an effective legal regime and regulatory framework in Nigeria.
1.4 Aims of the Research
To achieve this aim, the research will address the following questions.
1. The meaning of gas flaring and the implications to the environment and human health.
2. The issues and problem of gas flaring regulatory framework in Nigeria and whether it is properly managed.
3. The role of international and environmental law plays in addressing the problem.
4. The factors that are responsible for the reduction of gas flaring in Canada.
5. Finally, the lessons that can be learnt by Nigeria from Canada in order to achieve complete gas flaring mitigation.
1.5 Structure of the Research
This Chapter One introduces the dissertation as a whole and among other things, describes the problem of gas flaring, the rationale of the study, the aims, objectives and methodology. Chapter Two shall provide a clear understanding of gas flaring and its implication to the environment and human health. Chapter Three shall examine the current international environmental laws in Nigeria. Chapter Four further evaluate the ineffectiveness of the regulatory framework in Nigeria. Chapter Five will access the Canadian regulatory framework and the effectiveness of the legislation in Alberta. Chapter Six shall give an analytical recommendation and conclusion on how to effectively reduce gas flaring in Nigeria.
This dissertation will undertake an in-depth study of the legislations that regulate gas flaring in Nigeria and Alberta.This will involve a critical analysis of the interpretation of the regulatory framework of gas flaring in Nigeria and Canada.
This methodology will be beneficial as the aims and objectives will be emphasised with different interpretations of author’s textbooks, journals, articles, case laws, legislations, laws, judicial precedents, etc
The limitation of this research is the collection of data. There will be no need for the questionnaire to elicit data collection. The dissertation is exclusively reliant on research method no survey as such will be conducted.
1.7 Justification for Chosen Methodology
Given the complex features of the subject matter, there is likely to be a dearth in the regulatory framework of gas flaring in Nigeria than the Alberta’s. Therefore, the research will lean towards finding the potential limitations and implications of the laws and regulations in guaranteeing the effectiveness of the regulatory framework of Nigeria using Alberta’s regulatory success.
UNDERSTANDING THE PRINCIPAL ELEMENT OF GAS FLARING
This chapter will provide an introduction of gas flaring; predominantly from the Nigeria perspective. The objective of this chapter is to:
To give a clear understanding of the basic principles of gas flaring and the implications of gas flaring to human health, environment and the Nigerian economy.
Historically the operators of oil and gas production did not consider natural gas to be useful and therefore conducted the procedure of flaring of the natural gas with the intent of facilitating the reduction of pressure in the well. Some of these operators viewed it as a safety precaution, but in most instances, is conducted as a means of disposing of the excess natural gas during production.  Generally, Natural gas is the gaseous forms of petroleum which consist of mixtures of hydrocarbon and fumes predominantly 80 percent methane together with minor amount of propane, ethane, butane, nitrogen, pentane and hexane. The burning of this associated gas produces carbon dioxide which emanates greenhouse gases that have a tremendous impact on the environment and human health.  It is pertinent to note that the eradication of flaring will help to slow down the effect of global warming.
The flaring of natural gas over the last two decade had remained at a consistent rate of 100bcm/year with less than 15 countries accounting for an estimate of 80% of the quantity discharged into the atmosphere. Examples of such countries are Russia, Nigeria and Iran 
In the light of this negative trend developing countries such as Nigeria are still struggling with generating electricity and consumption shortage despite the huge natural gas resources. Thus, instead of flaring of natural gas it should at least be burned for a productive use rather than just been wasted especially when half of Nigerians do not have electricity. Natural gas, if used as fuel to heat homes and cook food, could improve Nigerians’ quality of life.
2.2 What is the Term Gas Flaring?
Gas flaring is a phenomenon that is wasteful in terms of Natural resources as well as a contributor to global GHG emissions. The Flaring of Gas is globally known to be detrimental to the environment, as well as a significant waste of natural resources.
The flaring of Gas can be described as the practice of burning of natural gas that is associated with crude oil in a place where there is no infrastructure to make use of it. This is a common and usual practice in oil production process that occurs in oil fields, platforms, refineries and industrial plants. Thus, the oil produced in countries without a well-developed gas infrastructure often releases the produced associated gas into the atmosphere either ignited (flared) or vented. The facilities used for burning these natural gas is called ‘flares’, they are important safety device used in refineries to burn excess hydrocarbon gases. A flare system is made up of a flare stack and pipe that feeds gas back into the stack and gas flows into a vertical line and immediately lit to burn off.
The most common flares used in industries are the elevated flares and the multi-jet ground flares. The elevated flare is used to reduce the degree of smoke. The flares operate from the top of a stack (a vertical exhaust pipe) usually excess of 150 ft high. Steam is burnt to complete combustion and thereby reduce the smoke emission. While the multi-jet ground is selected where luminosity is a problem especially in the housing area. In this type of flares, the vapour is burnt within the flare stack thus considerably reducing the luminosity.
In the light of the above, Gas flare, which is otherwise known as the gas stack, is a high vertical exhaust used to eliminate waste gas, it is usually found in oil and gas wells, rigs, refineries, platforms, chemical plant, natural gas plants, and oilfields. They also act as a safety system for non-waste gas and are released via pressure relief valves when needed to ease the strain on equipment. This protects gas processing equipment from being over pressured. Also in the case of emergency, the flare system helps burn out the total reserve gas.
2.2 The Reason for Gas Flaring
Flaring and venting of natural gas from oil and gas wells is a substantial source of greenhouse gas emission, it contributes more than 1 percent of to global emission of CO2.  According, to BP Statistical Review of World Energy 2016, Nigeria has a proven natural gas reserve of about 180 trillion standard cubic feet, which in energy terms is substantially larger than its oil resources. Over 50% of the produced gas (mainly associated gas) was flared, as at 2010.
However, several reasons could be attributed to flaring worldwide ranging from traditional safety, emergency reason, inadequate regulatory framework, lack of adequate economic incentives to encourage utilisation and the re-injection of gas.
Normally, associated gas is being produced in large volume, a greater quantity of the natural gas is left unused and only little of the quantity is utilised. In, Nigeria, production platforms are not equipped with gas infrastructures and domestic gas market, as such the country is left with the challenge of managing a large volume of highly flammable gases.
The need to dispose of these excess gases becomes an issue as any slight source of ignition may lead to the destruction of wildlife, humans and property, thus it becomes a serious and urgent issue of safety concern. Therefore, flaring becomes the cheapest and convenient means of disposing of off waste gases using combustion.
2.3 Historical background of gas flaring regulation in Nigeria
Nigeria is the most populated African country in West Africa. According, to the National Population Commission of Nigeria, the country has an estimate of 180 million people in 2016 with a land area of 370,000 square miles.
Nigeria is a country blessed with both renewables and non-renewables natural resources with crude oil as the major source of energy generating millions of dollars for the Nigerian economy. Most Her crude oil is found in the Niger Delta region.
Historically, Nigeria exploration activities started in 1908 by a German entity in the Araromi area in west Nigeria. However, Crude oil was first discovered in commercial quantities in Oloibiri, Niger Delta, in 1956 while oil production started in 1958. Furthermore, the Crude-oil products that are produced in Nigeria are deemed the property of the federal government, consequently, no private individual has a right to oil. Nigeria gains more than 70% of its revenue from oil exportation. Despite the substantial revenue from oil production, Nigeria continues to suffer from the environmental degradation associated with oil production and gas flaring continues to be the norm in the region.
Gas flaring began simultaneously with oil extraction in 1960, at the end of colonial rule by Shell-BP. Since then, the government recognised gas flaring as a potential problem associated with crude oil production and had made several efforts to combat the gas flaring issues through legislations.
In 1969, the first legal regime was established, ‘The Petroleum Act of 1969’ to oversee the activities of the oil and gas industry. The Act requires oil companies to take all necessary precautionary measure to prevent pollution. It provides adequate compensation and royalties where the extraction and production activities affect the environment except with the permission of the Minister of Petroleum. In addition, the companies are also required to submit a feasibility study of the gas utilisation within 5 years after the production start date to the Minister of Petroleum. However, the Act lacks the provision of precise sanctions for companies who breached this regulatory requirement and Act also lacks legal obligations of the oil and gas industry to reduce gas flaring before and after the submission of the feasibility study for gas utilisation. The defectiveness in the Regulation was therefore exploited by oil-producing companies.
In 1973, a Petroleum Amendment Decree was approved in which associated gas could be extracted and utilised without royalty payments. The decree was meant to control the use of natural gas. However, the Act failed to provide control of gas flaring because of the absence of infrastructure to develop and utilise the produced gas.
In 1976, the federal government promulgated the Associated Re-Injection Act of 1979 which requires companies producing oil and gas in Nigeria to re-inject the Associated gas into the earth crust or submit detailed plans to gas utilisation. The legislation prohibits companies from flaring gas after January 1984 unless special permission is taken from the Minister of Petroleum. The penalty for breach of the enactment was ‘punishment by forfeiture of concession’. The penalty was seen by most stakeholders as being too severe, hence there was a failure to enforce the sanction. The major setback of the 1979 Act was based on the failure of the government to contribute its share to the cost of building gas re-injection facilities based on the existing joint venture agreement with the oil industries.
In 1984, the gas flaring re-injection Act of 1979 was reviewed to enable companies operates in a favourable condition. The Associated Gas Amendment Decree of 1985 penalty was changed to a low fine of one million dollars which was a more cheaper option for the oil companies compared to re-injection.
Although the cost was reviewed a couple of times, the amount remained significantly low compared to re-injection.
2.4 Factors Influencing Gas Flaring in Nigeria
The flaring of gas is one of the most challenging energy and environmental problems as its impact has been a major concern both locally and globally. It is a multi-million-dollar waste that causes environmental degradation, illness, death, destruction of wildlife etc, which has been persistence for decades. These effects have received the most corrective attention worldwide.
In Nigeria, the oil companies engaging in flaring of gas burns it continuously with people literally living next door to the loud, ground-level flames that leap as high as several story buildings. The negative impacts of gas flaring in Nigeria are enormous, some of these impacts are discussed below.
2.4.1 Environmental Degradation
It is generally known that flaring and venting of associated gas have negative impacts on the environment because of the greenhouse gas, methane, carbon dioxide and toxins it emits into the atmosphere which contributes about 80 percent of global warming. In 2002, the World Bank estimated that the greenhouse gases emitted by Nigeria are more than 34.38 million tonnes accounting for about 50 percent of all industrial emission and 30 percent of the total CO2 emission.Thus, contributing more greenhouse gases than all other sources in Sub-Sahara Africa combined. This report is enough to trigger the Nigeria government into putting more effective measures in place to mitigate gas flaring in the country.
The flaring of gas is also a major contributor to air pollution and cause of acid rain with its impact on agriculture, forest and physical infrastructure. The acid rain which involves in environmental degradation includes water contamination and roof erosion. The concentration of acid in rainwater appears to be higher in the Niger Delta region making the quality of water in the area acidified and thus contain a high concentration of anions and cations which damage vegetation, pollutes the soil and water of the aquifers and further accelerate the decay of building materials such as metal roofing sheets.
This impact shows clear ground why the practice of the flaring of gas should be eliminated.
2.4.2 Health Impact
In Nigeria, gas flares are usually located in local communities and the inhabitant regularly lacks adequate fencing or protection from the tremendous heat of the flares as they carry out their daily activities. Thus, leading to an adverse effect on their health and livelihood, as the flares releases varieties of poisonous chemicals such as xylene, sulphur dioxide, benzene and metals such as mercury. Humans resident close to the flare site suffers from the respiratory problems, such as asthma, chest pain, breathing difficulties, chronic bronchitis etc which have been reported amongst many children in the Niger Delta region.
In addition, the US Environmental Protection Agency stated that the exposure to benzene which is emitted from gas flares causes acute leukaemia and a variety of other blood-related disorders.The world bank information on adverse effects of the particulate matter suggests that gas flaring from Bayelsa state in Niger Delta Nigeria would likely cause on an annual basis of 49 death, 4,960 respiratory illness among children and 120 asthma attacks.
2.4.3 Economic Impact
In Nigeria, the flaring of gas is calamitous from an economic perspective because of the wastage of valuable non-renewables natural resources.Thus, the effective management and utilisation of associated gas can be an indubitable source of revenue for the governments as well as contributing to solving the problem of electricity in the country.
In addition, it is estimated that 2.5 Billion US Dollar is been wasted annually from gas flaring in Nigeria with 66 percent of Nigerians living below the poverty line. The International Association of Oil and Gas Producers (OGP) reported that the flaring of gas situation in Nigeria represents an immense economic leakage and wastage of the country’s vast gas potentials.
In view of the various implications of gas flaring to human health, environment and the Nigeria economy, it is pertinent to state that the Nigeria government has not done enough in tackling the issues surrounding the flaring of gas by not providing the necessary infrastructures and enforcement of rigid regulations to prevent the flaring of gas during production and exploration activities by multinational companies. The impacts of gas flaring should be taken into consideration by the Nigeria government when granting licences to multinationals oil companies
Although various legislation has been put in place (as will be analysed in chapter 3) with the view of reducing gas flaring the problems remain unabated. As the companies involved in the flaring of gas claimed that the technologies required to mitigate gas flaring is beyond their demand and required sufficient time to acquire it.
REGULATORY FRAMEWORK OF GAS FLARING IN NIGERIA
This chapter shall examine the effectiveness of the regulatory framework and strategies in Nigeria and provide reasons why the efforts by the government remain unabated.
In recent times, there has been an increased campaign for the protection of the environment especially in the rural area of Nigeria, as more citizens become aware of the various environmental issues that have arisen from the industrial production and exploration activities that are being carried out in the country.
The development of the oil and gas industry in Nigeria has had an adverse impact on the country’s environment owing from the legacy of gas flaring and lack of stringent environmental regulations. The reason for this inefficiency emanates from the fact that the government are more concerned about the economic benefits derived from the industrial activities rather than the environmental consequences.
However, the Nigerian government over the years has passed several types of legislation, each of which was designed to eliminate unnecessary flaring. Unfortunately, these initiatives have simply been ineffective due to the failure by the government to provide either monetary support or concrete enforcement mechanism. These legislations includes: the 1969 (Drilling and Production) Regulation, the 1973 Petroleum Amendment Decree, the 1979 Associated Gas Re-Injection Act, the 1983 Associated Gas Re-injection (Amendment) Act, the 1985 Associated Gas Re-injection (Amendment) Decree, the 2004 Associated Gas Re-injection (Amendment) Act, the 2010 Associated Gas Re-injection Bill and finally the Petroleum Industry Bill 2012.Regrettably, some of these aforementioned legislations have not been adequately amended to include stringent sanctions for companies operating in gas flaring since their enactment.
Alternatively, various institutional framework also exists in Nigeria aim at mitigating gas flaring, they include, The Ministry of Petroleum Resources, The federal Ministry of Environment, The Department of Petroleum Resources, The Niger Delta Development Commission and The National Environment Standards and Regulations Enforcement Agency.
3.2 The right of ownership of the oil and gas in Nigeria
A brief historical development of the regulatory framework of gas flaring in Nigeria has been given in chapter two. However, it is pertinent to note that the issue of the right of ownership have been a great functional and symbolic significance in the oil industry as it has received a lot of attention worldwide.
In Nigeria, the right of ownership and control of the oil and gas resources is vested in the state of Nigeria. The present 1999 Nigerian Constitution, section 44 (3) reaffirms that the Federal Government’s has
‘an exclusive right of ownership, control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria, its territorial waters, and exclusive economic zone.’
However, the implication of the federal government absolute ownership of oil is that it controls the exploration and production resources without considering the impact of the activities to the host communities (Niger Delta). It is also interesting to note that the important of the resource to the government influence the legislation on its ownership.
In addition, the government through appropriate agencies like the Nigeria National Petroleum Corporation (NNPC) has put in place various policies agreement and regulation for the control and supervision of the oil industry for the overall economic development of the country. The policies and agreement include the Joint Venture Agreement, (JVA) and Production Sharing Contract (PSA). These Oil production contracts have the capacity to affect the volume of gas that is flared and vented through the provisions governing the rights and obligations of operators and governments in relation to associated gas.
Under the Petroleum Act of 1969, the federal government grants concessions to operators in the form of Oil Mining Leases (OMLs). The procedure for obtaining the OML involves the granting of several levels of licences in the following order – Oil Exploration Licence (OEL), Oil Prospecting Licence (OPL), and the OML. The OML is the largest oil and gas right that oil companies can acquire in Nigeria. The federal government, through the NNPC, typically acquires a 60 percent participation interest in companies’ OMLs through the JVA, which is the most common form of oil and gas agreement in Nigeria.”
It is obvious from the nature of the agreement that the contracts between the Nigeria government and the multinational oil companies have a major impact on the effectiveness of the regulation as NNPC JVA participation which is an agency of the federal government. Thus, this raises questions of institutional bias and lack of independence on the regulatory effectiveness as it could be argued that the NNPC’s participation in each JVA implies that it bears the responsibility for flaring about 60 percent of all gas flared in fields covered by JVs in the country. However, JV agreements are designated to the companies and not the NNPC, as companies are further responsible for the gas flared by them in the country.
One can infer from the above that one of the basic issue of flaring of gas in Nigeria is the agreement between the federal government and the oil companies as the government are also a party to the agreement through the NNPC. Thus, to mitigate the flaring of gas in Nigeria there should be a provision in the agreement to enforce stringent penalties and sanctions to defaulters. However, the Nigeria government in its strategies to reduce flaring has also enacted legislations. An examination of the enacted legislation and its effectiveness will be carried out below.
3.3 The Legislative and Regulatory framework of gas flaring in Nigeria
3.3.1 The Petroleum Act of 1969 and The Petroleum (Drilling and production) Regulation 1969 (PDPR)
The Petroleum Act and the Petroleum Regulation of 1969 were the first Act that addressed the general potential problem of oil production and its accompanying environmental hazards as the act encouraged oil companies to submit oil-development schemes that specified potential solutions to such environmental hazard.
Under Section 9 (1)(b) (iii) of the Act empowers the petroleum minister to make regulations relating to licences and leases granted for the prevention of pollution of water courses and the atmosphere. ‘Pollution of Atmosphere’ in this context could be implied as gas flaring as it’s a source of atmospheric pollution. However, no other specific provisions on gas utilisation exist anywhere under the Petroleum Act.
Furthermore, the PDPR provides that not later than five years after the commencement of the production from the relevant area, the licensee or lessee shall submit to the minister a feasibility study programme or proposal that may have the utilization of any natural gas, whether associated with oil or not, which has been discovered in the relevant area.
However, the provision was flawed as there were no penalty or sanctions provided for defaulters of the licence and leases for non-compliance thereby making the regulation ineffective. The five years’ deadline given to the producers to flare gas for a period before submitting the feasibility study was however breached by the producers, as there were no infrastructures to utilised the natural gas. The government were therefore left with no option but to shift the deadline.
3.3.2 Associated Gas Re-Injection Act 1979 (AGRA) and the Associated Gas Re-Injection Regulations 1984 (AGRR)
The Federal Government promulgated the Associated Gas Re-Injection Act No.99 of 1979 (with an amendment of 1985) and the Associated Gas Re-injection (Continuing Flaring of Gas) Regulations1984, due to the high incidents of flaring of gas. The AGRA which was the first legislation to deal with gas flaring in Nigeria. The Act requires oil companies to submit detailed plans for the viable utilisation of all associated gas and re-injection programmes of rejecting the associated gas into the earth crust. The oil companies were also required to stop the flaring of gas by 1 January 1984, unless with special permission from the minister of petroleum.In addition, a drastic penalty of forfeiture of concession and repair or restoration of any reservoir in the field in accordance with good oilfield practice was imposed on any defaulters after that date
Although at a first glance, it seems like the Act will put an end to gas flaring in Nigeria, it did not because there were no provisions as regard payment of fines by the defaulters and the oil companies were still allowed to flare gas with the permission of the Minister of Petroleum.
Furthermore, when it became obvious that the 1984 deadline was not visible the government enacted the AGRR of 1985 which generally prohibit flaring except with the issuance of authorised certificate by the Minister of Petroleum on the continuation of gas flaring. It is however, unclear whether such certificate is issued in Nigeria as the issuance and non-issuance of the certificate is not made public and cannot be challenged by a private individual. Also, the discharge of hazardous substance into the air or upon land without the permission of the Minister is a criminal offence under section 21 (1) and (2) of the Federal Environmental Petroleum Act. However, the use of the Phrase ‘lawful Permission’ gives the government the discretion to permit the flaring of gas by companies.
In addition, to the issuance of the authorised certificate, the oil companies were subject to such terms and condition as may be imposed by the Petroleum Minister, including the payment of periodic liability fees. The Act was basically rendered useless when the government rendered exemptions to most oil companies by the payment of an absurd amount of fine of 2 Kobo ($ 0.0011) per 28. 317 Standard Cubic Meter of gas flared. In 1998 the fine was raised to 10 Naira ($ 11 Cents) and in 2009 $3.50 for every 1000 SCF of gas flared. The ridiculous low fine for flaring of gas in Nigeria, did little or nothing to the companies as it was cheaper for the companies to pay fines than build facilities to collect and transport the gas flared for alternative use as fuel or generation of electricity.
Flaring of gas in Nigeria has continuously been negotiated by the oil companies as the government postponed the flare-out deadline to the 1 of January 2008, later to December 2008. However, the 2008 deadline was not feasible, as it was an understanding between the government and the oil companies, thus, was not backed by laws making the companies vulnerable to violation, as they unilaterally set 2009 as a target year. In 2009 the government announced another shift of flare out date to 2010 and was further moved to 2012 which was still not obeyed.
It is obvious from the continuous shifts in deadline the lackadaisical attitude of the government in mitigating gas flaring in Nigeria, as the impact of the flaring remains hazardous to the citizens.
3.3.3 The Role of The Nigeria Legislature
The Nigeria legislature also plays an important role in combating the menace of gas flaring as empowered by the 1999 Constitution to promulgate legislation to ensure proper organisation in all sectors of the nation economy.Accordingly, the Nigerian National Assembly in 2010 in its duties amended the Associated Gas Re-Injection Act by providing that, “ No company engaged in the production of oil or gas shall after 31st December 2012, flare gas produced in association with oil, or other than such minimum allowed by the Minister.” The amendment set December 31, 2012, as the deadline for the abatement of gas flaring, The 2012 deadline had been missed due to the reluctance of the government to enact a comprehensive legislation to address the environmental issues and financial compensation to the host communities.
However, in July 2012 the Nigeria government in a bid to combat gas flaring made a significant legislative effort to pass a Bill called ‘The Petroleum Industry Bill, 2012’ (PIB). The PIB seeks to consolidate previous legislations relating to the operation of oil and gas activities in the country, by providing comprehensive legal, fiscal and regulatory framework for the exploitation of oil and gas resources. The fundamental objectives of the PIB is to create effective regulatory agencies, promote transparency, protect health, safety and the environment during explorations activities.
Furthermore, the PIB provides that a licensee must obtain a permit from the minister of petroleum to flare gas, failure to obtain the permit the licensee shall be liable to fine which shall not be less than the value of gas flared. The Bill prohibit the granting of a licence to any applicant that fails to submit a comprehensive gas utilisation plan. The Bill mandates operators in the oil and gas industry to install measuring equipment to measure the volume of gas flared, such equipment shall be specified by the inspectorate.
Another important feature of the PIB is the opportunity given to private individual, group of individual and communities to lodge a complaint to the inspectorate who shall then inspect, verify, and determine the cause(s), the date, and the volumes of the gas flared within forty-eight hours of the receipt of the report. The officer who verifies the report shall submit to the Inspectorate, if satisfied will then imposed a fine or issue a shut-down order.
The PIB legislation is the kind that is needed in Nigeria at least, for the first time, the penalties for gas flaring are directly related to the market value of the volume of the flared gas, with a combination of shutdown orders or imprisonments. This stringent legislation if implemented will deter oil companies from flaring rather invest in utilisation and re-injection project. However, the bill has been seen as being controversial by shareholders in the oil industry and detrimental to oil and gas operation, thus explaining some of the reasons why the bill has not been enactment into an Act since 2012. Rather, the legislature passed a 2016 Bill called ‘The Gas Flaring (Prohibition and Punishment) Bill 2016’ with similar provisions with the PIB. The Bill also provide a deadline of gas flaring which is the 31 of December 2016, till date the Bill has not been passed into an Act and the flaring of gas still continue in Nigeria.
It is worthy of note that the numerous attempt of passing of bills as history as taught us, will not in any way mitigate the flaring of gas in the country rather such effort should be channelled to enforcing of an Act.
3.3.4 The Judicial attitude to Gas Flaring in Nigeria
Principle 10 of The Rio Declaration on Environment, provides that environmental issues are best handled with the participation of all concerned citizens in environmental judicial matters with aim of safeguarding the right of healthy and sustainable environment for the present and future generation. This enables the citizen to have redress and legal remedy.
In Nigeria cases of environmental degradation are not new to the judicial system as concerned citizens in the affected region seek redress to the elimination of harmful activities by multinational oil companies (Shell BP, ExxonMobil, Chevron and Texaco). The landmark case is the 2005 Gembre case which was the first case to establish a judicial authority that the flaring of gas is illegal and unconstitutional. The question that comes to once mind is what propelled this long-awaited change? This may be linked to the principle of separation of powers in the country.
Nigeria is a federal system of government which comprises of three arms, with the president exercising the executive power, legislative power resting on the National Assembly and the judiciary which comprises of the judges and lawyers. Based on the principle of separation of powers, the legislative makes the law, the judiciary interprets the law while the executive implements the law. Thus, the interpretation of the law by the judiciary is seen as a last hope for the common man as the citizens expect to see an application of impartial rule of law in the administration of justice.
In the Gbemre case, the interpretation of the 1999 constitution was a major factor used in the decision of the court against gas flaring. The court declared certain provisions of the AGRA as well as other legislative enactment dealing with gas flaring as inconsistent and unconstitutional as it violates fundamental human rights of the individuals as enshrine in the constitution.
Although, there is no provision in the constitution that expressly state the right to healthy environment. The court expresses its judicial power in the interpretation, as it made a connection between the human right violation and environmental degradation and expressly interpreted fundamental right to life to include rights to healthy environment.
The Gbemre case is referred as the landmark case due to the drastic shift in the court decision when compared to Chinda v Shell BPwhere the court rejected the plaintiff request for an injunction against flaring saying ‘it is an absurdly and needlessly wide demand’.
However, a change in the attitude of the court without a corresponding change of the government and the oil companies will not produce the desired result. For example, there was an interference in the judicial process in the Gbemre case that resulted in the removal of the judge, to frustrate the enforcement of the decision of the court. Shell BP also demonstrated a reluctance in the decision of the court and failed to comply with the order to discontinue flaring till date.
3.3.4 Other Statues and Institutional Framework
Apart from the above-mentioned regulations and laws, there are other substantive statutes and governmental agencies that are relevant to the protection of the environment in Nigeria. These statutes and the governmental agency will be examined below.
220.127.116.11 Ministry of Petroleum Resources (MPR)
The MPR is the main executive organ of the federal government as it’s responsible for the enunciation and implementation of policies relating to petroleum and other mineral resources.The MPR also maintain, monitor and regulate the practices of the oil industry. The Minister of petroleum is responsible for coordinating the affairs of the MPR and issuing the necessary regulations and permits under the Petroleum Act and other relevant laws. The MPR has several departments and corporations under its control and supervision, including NNPC.
18.104.22.168 The Environmental Impact Assessment Act of 1992 (EIAA)
The Act is geared towards regulating the operational activities of the oil companies which may have an impact on the environment either directly or indirectly except exempted by law. Under the Act it is mandatory for companies to undertake an Environmental Impact Assessment (EIA) on the location or field before embarking on any operational activities, to have an idea of the likely effect of the activities on the environment. The Act also provides an opportunity for members of the public to make comments on the EIA before the approval by the governmentand notification is also given to the affected states of the potential effects of the project where the impact of the study will have such effect.
In the light of the above, there is no doubt that the EIAA presents a significant improvement in the Nigeria Regulations. However, its impact is significantly weakened by exceptions of exemptions, where the President of Nigeria or the Federal Environmental Council determines that the environmental impact of the project is likely to be minimal. Thus, companies with political connection with the president or council can easily bypass the EIA requirement.
22.214.171.124 Niger Delta Development Commission Act 2000
The NDDC Act was enacted with the basic aim of establishing a new regulatory body for an enhance effective management of oil development in the Niger Delta region. The Act established the Niger Delta Development Commission (NDDC) which is empowered to tackle ecological and environmental problems that arises from oil and gas activities and further advises statutory authority and the federal government on how to prevent and control the flaring of gas and other environmental pollution.
However, the commission was hunted with challenges that eventually led to the failure of the commission as they lack credible and acceptable master plan strategies. Above all is mismanagement, corruption, lack of transparency and accountability that enabled the members of the commission to enrich themselves with outright impunity. Thus, failing in their duties to mitigate gas flaring that would have eventually prevent health problems in the region.
126.96.36.199 National Environmental Standards and Regulation Enforcement Agency (NESREA) Act 2007
The Act established the National Environment Standards and Regulations Enforcement Agency with a view of establishing a basic institutional machinery for environmental management in Nigeria, in line with the emerging global efforts in preserving the environment, particularly the atmosphere. The duties of the Agency include:
‘to enforce compliance with the provisions of international agreements, protocols, conventions and treaties on the environment, including climate change, oil and gas, chemicals, hazardous wastes, ozone depletion, pollution, sanitation and such other environmental agreements as may from time to time come into force’. 
The Agency is also mandated to conduct field follow-up compliance with set standards and to punish the offender in conformity with the provision of the Act.
However, the NESREA does not have enforcement powers over the oil and gas sector. Thus, NESREA limiting their powers to enforce laws on matters of pollution, exploration and exploitation of petroleum and natural gas. Hindering environmental justice in the country.
3.4 Challenges affecting the mitigating of gas flaring in Nigeria
In view of the above, there is no doubt that one of the main reason why gas is still flared in Nigeria is because of the ineffective legislation and the requisite stringent sanction to the effect. The continuous flaring of gas with the permission of the government clearly shows the weakness of the existing laws to compel oil companies to end gas flaring as the decision of the government in implementing these laws are often influenced by political and economic consideration. Thus, for there to be headway towards mitigating gas flaring there must be a drastic change of the government attitude in the implementation of policies.
Another major challenge affecting the mitigation of gas flaring is lack of modern technology. Till date, officers monitoring the environment do not have the effective modern equipment to enhance monitoring of some of the environmental problems as requires by the EIA. The country also lacks developed gas market and relevant infrastructure for the collection of utilised natural gas, as companies prefer flaring gas with the view that the equipment are expensive. The government have also failed in their own funding obligation towards ending gas flaring. Although, there are an existing gas project such as the Nigeria Liquefied Natural Gas project and the Escravos Gas Project if completed may be useful to help to conserve and utilised natural gas in the country.
Furthermore, the adherence to legalism by the courts is also a challenge. One of the major problems of enforcement of environmental laws in Nigeria is the issue of locus standi. Individuals lack environmental rights to pursue their environmental related problems in the court of law, as matters relating to environmental civil litigation are far from being liberalised by the Nigeria courts and this hinders private individuals from participation in the enforcement of environmental protection legislation. Thus, individuals resorted in seeking redress from the Multinationals companies home country as seen in the case of HRH Ereme Okpabi & Others v. Royal Dutch Shell PLC & anor. Where the court in London affirmed jurisdiction over Shell in a lawsuit initiated by four farmers together with Friends of the Earth.
Despite the challenges in the Nigeria legislations and laws, there is no doubt that the nation has made tremendous effort to reduce gas flaring as they are also signatory to international conventions and protocols as will be analysed in Chapter four of this research.
INTERNATIONAL REGIMES APPRAISAL NIGERIA
This chapter shall analyse some of the international gas flaring initiatives that the Nigeria government has made and the impact of the international regime on Nigeria.
Over the years the Nigerian government in its quest to reduce gas flaring has been involved in numerous international arrangements, treaties and initiatives for the mitigation of gas flaring, carbon emissions and global warming. However, for this research the discussion will be limited to, the United Nations Framework Convention on Climate Change (UNFCCC); Kyoto Protocol and Global Gas Flaring Reduction Partnership (GGFRP).
4.2 The United Nations Framework Convention on Climate Change (UNFCCC)
From the international point, UNFCCC was the first effort made to address the problem of climate change by greenhouse gases.The greenhouse gases emanate from oil and gas activities. This framework was adopted in the United Nation Conference on Environment and Development (UNECD) which was held in 1992, in Rio de Janeiro, Brazil, to address issues relating to environmental protection. The UNFCCC entered into force that same year in accordance with Article 23 of the convention.
Nigeria, joined over 100 leaders at the conference to sign the UNFCCC, which main objective is to provide stabilisation of greenhouse gas concentrations in the atmosphere for the prevention of dangerous interference with climate system influenced by human activities. It is required that the stabilisation and reduction of the level of concentration should be achieved within a period of time sufficient to allow ecosystems to adapt naturally to climate change and to enable economic activities like oil and gas exploration and production to proceed in a manner that will not be harmful to the environment.In 1994, Nigeria ratified its commitment to the convention as Annex II party and has the responsibility to perform its obligation under the convention.
Furthermore, to achieve the objectives of the UNFCC, the convention stated the principles that are to guide the parties which includes: precautionary measures, gathering and sharing of information on greenhouse gas emission, corporation and promotion of sustainable development, launching of national strategies to tackle greenhouse gases, cost-effectiveness, financial support and technological transfer of for developing countries. Under Article 4 (1) (a) parties are also enjoined to ‘periodically update and publish national inventories of anthropogenic emission….’ This publication of inventories will require transparency on the part of the national government, an attitude which has not yet been adopted by the Nigeria government in relation to gas flaring.
In addition, the convention also presents a financial mechanism to assist developing countries (Annex II) to carry out their commitment under the sponsorship of Global Environment Facility (GEF).
However, the UNFCCC weakness is found in Article 4 (2) (a-b) in which developed countries partook on a non-legally binding commitment to reduce their greenhouse gases emission, leading to the lack of compliance of the parties to the commitment. It was therefore recognised that a non-legally binding commitment was insufficient and this led to the motivation of the negotiation of the protocol.
4.2 The Kyoto Protocol (KP)
The Kyoto protocol was signed at the conference of parties as a protocol to the UNFCCC in 1997 and came into force in 2005. It’s the first legally binding agreement which promotes taking of concrete measures and binding commitments to reduce greenhouse gases. The major feature of this Protocol is that it’s set a binding target for industrialised countries to reduce their CO2 emissions to 5% below 1990 levels over a period of five years beginning from 2008 to 2012. To achieve these, industrialised nations would have to implement measures to reduce GHG emissions and submit periodically report of GHG emission.However, the protocol offers countries additional means to meet their target by way of three market-based mechanisms via clean development mechanism (CDM), emission trading and joint implementation.
The CDM has been described as one of the most innovative mechanisms of the Protocolas it is the only flexible mechanism that allows the direct participation of developing countries in emission reduction activities.Its obligates developed countries to attain their emission reduction targets by investing in carbon offsetting projects such as providing funds and technologies to reduce greenhouse gas emissions in developing countries. These carbon offsetting project can be gas utilisation project which helps in utilising associated gases which would otherwise be flared. In addition, the developed countries are also at liberty to sell their emission credits to countries that have emission targets challenges as well as obtain money and technologies for low carbon investment from the developing countries. 
However, one of the defining issues of the protocol has been whether the developing countries take emission targets, as the protocol lacks commitment on the developing nations to reduce emission. It is therefore required that to prevent ‘dangerous climate change’ actions by developing countries to reduce the growth of their emission is therefore essential. As developed countries are only obligated to take domestic actions for meeting their quantified emission limitation. Any international emission reduction mechanism by the developed countries are only meant to be supplementary to domestic actions where they are not sufficient to meet the target. It is, therefore, the responsibility of the developing countries to develop and implement their emission reduction strategies.
In 1998, Nigeria became a signatory to the protocol and in 2005 the agreement of the treaty came in force. Nigeria as an Annex II country has the potential of benefiting from the development project given by the treaty to achieve the target of Annex I countries. However, there is no doubt that Nigeria legislations as discussed in chapter three have integrated the protocol obligations but their implementation is evidently lax. The development plan in Nigeria does not take cognisance of the Kyoto Protocol obligations and merely pays lip service to it.
Thus, the government should, therefore, develop and implement emission reduction strategies.
4.3 The Global Gas Flaring Reduction Partnership (GGFR)
The GGFR partnership is an agreement launched by the World Bank in collaboration with Norway at the World Summit on Sustainable Development in August 2002 with representatives of the OPEC, EU, industrialised nations and major international oil companies to overcome the worldwide barriers to reducing associated gas flaring by promoting effective regulatory framework, sharing global best practices, implementing country-specific programs and tackling the constraints on gas utilization, such as insufficient infrastructure and poor access to local and international energy markets, particularly in developing countries.  The GGFR is now endorsed by 18 countries (including Nigeria, Canada, Iraq, Kazakhstan, Russia and Uzbekistan) and 13 major oil producers (for example Shell BP, Chevron, ExxonMobil, Kuwait and Total). Canada is considered to be an international leader in effective flaring and venting reduction practices.
The aim of the GGFR is to significantly reduce global flaring and venting which stood at over 150 billion cubic metres per annum between 2002 and 2005. In Nigeria, the GGFR assist the government in designing financial mechanisms related to carbon credits building capacity within Nigeria government institutions and the oil and gas sector and supporting demonstration projects to show the effectiveness of this approach. A major challenge is securing access to the gas demonstration projects and establishing the pricing structure for domestic use.
The GGFR action plan to reduce flaring of associated gas are as follows;
- Regulations for associated gas
- Commercialising of associated gas
- Implementation of voluntary standard for associated gas flaring and venting reduction
- Capacity building to obtain carbon credits for flaring reduction project.
4.3.1 Regulations for associated gas
Regulating of gas flaring and venting gives legal effect and are binding on all parties, pursuant to powers of the regulatory authority provided in relevant primary and secondary legislations. An effective enforcement of regulations is very crucial in reducing gas flaring. Developed country like Canada over the years have effectively reduced flaring through regulatory procedures which are the opposite of Nigeria.
The GGFR works on regulations encourages countries to creates the right incentives such as providing export facilities and enactment of proper regulatory structure for the utilisation of associated gas. Regulatory gas flaring and venting procedures refer mainly to the following procedures like approval of venting permit, measuring, reporting and monitoring flaring volumes and enforcing operational standards.
The GGFR is assisting partners like Nigeria in significantly reducing their contributions to global gas flaring through promoting effective regulatory frameworks and tackling the constraints on gas utilisation.
- Commercialising of associated gas
In a bid to reduce gas flaring, the GGFR aid developing countries in gaining access to international market and developing domestic markets for associated gas. They also facilitate demonstration process for associated gas utilisation by establishing a partnership between relevant stakeholders.
In March 2017, a seminar which focuses on the reduction of gas flaring was held in Washington, it was jointly organised by the Nigeria government, the International Gas Union (IGU), the World Bank and GGFR. The objectives of the seminar were to initiate consultation on a new National Gas Flare Commercialization Program. Following the seminar, the Nigeria government requested additional support from GGFR and the World Bank to expand and implement its new gas commercialization program. Furthermore, various development institutions, such as Agence Française de Développement and Environment Canada, expressed their interest in partnering with the World Bank and GGFR to support gas flaring reduction in Nigeria.
In addition, with the help of the GGFR, the Nigeria government has developed gas sector strategy for the domestic market by drafting a Downstream Gas Act as part of its policy which aims in addressing regulatory, institutional and policy constraint to investment in the Nigeria downstream sector.
4.3.3 Implementation of voluntary standard for associated gas flaring and venting reduction
In 2004, the GGFR endorsed the global voluntary standard for flaring and venting reduction. The voluntary standard recommends consistent use of mass and energy balances to estimate gas flare and vent volumes in the existing wells, and the installation of flow metres in newly developed wells. It provides guidance on how to achieve reductions in flaring and venting of associated gas worldwide. The global standard is also a way to engage stakeholders in gas flaring reduction and provides a framework for the government and oil companies to take collaborative actions to reduce gas flaring. It’s a voluntary process and does not include any form of penalty if not adhered to.
The GGFR partners that have endorsed the voluntary standard are committed to ‘no venting no routine flaring’ in new projects unless there is no feasible alternative and the elimination of flaring significantly within five to ten years by finding commercial uses for the associated gas through increased collaboration between countries. However, the implementation of these standard requires sufficient capital expenditure. The standard includes monitoring and transparency which will provide a feedback on a broad range of stakeholders. This will provide a clear indication of the effectiveness of the standard.
An example of a successful voluntary standard approach is found in Canada, where the Canadian government in 2004 endorsed the Canadian International Development Agency (CIDA) which has provided significant financial support to the World Bank for the partnership effort. The implementation of the CIDA has resulted in a reduction of more than 50% of gas flaring.
The Nigerian government has also implemented the GGFR’s voluntary standard for reducing global gas flaring and venting with the goal of reducing barriers to the utilization of associated gas but due to the lax by the Nigeria government in furnishing information on gas flaring to stakeholders and the affected communities it may be a while before any initiative in line with the standard will be implemented.
4.3.4 Capacity building to obtain carbon credits for flaring reduction project
In 2002, the GGFR released a report on Kyoto Mechanisms for Flaring Reductions which attempts to overcome financial constraints on projects to reduce gas flaring by designing innovative financing mechanisms, including carbon credit trading.
GGFR has facilitated flare reduction demonstration projects in Angola, Algeria, Indonesia, Nigeria, and Russia in order to evaluate their potential to earn greenhouse gas credits through the CDM structure and to show how carbon credit trading can improve the economic viability of gas flaring reduction project.
However, the success of the initiative is dependent on the willingness of operators to co-operate and share gas volumes and technical information which may be commercially and politically sensitive. 
- Impact of International regimes on Nigeria
In the light of the above, it is with no doubt that Nigeria has indeed made tremendous international efforts in the mitigation of gas flaring in the country. Nigeria is a beneficiary of the CDM project and a signatory of the UNFCCC the impact of this instrument will be discussed below.
The Nigerian Government on its part in addressing the challenges posed by gas flaring, in 2003 submitted its first national report progress to the UNFCCC, so far Nigeria has made some progress on climate change governance, as it has recognised the threat of climate change in its economic prosperity and development in its current national development plan (vision 2020).
In 2008, two competing bills were introduced into Parliament with the aim of improving the ability to set, coordinate, and implement climate change policies.The first bill proposed the creation of a climate change agency with close ties to the Ministry of the Environment, while the second bill aimed to create an independent National Commission on Climate Change. However, both bills became trapped in the legislative process as till date have not received the presidential assent. Same was also applicable in the 2011 bill on climate change.
The lack of direct legislation on climate change in Nigeria act as a lapse on the mitigation of gas flaring as the important of climate change legislation can not be overemphasised. For instance, the requirement for the CMD projects receives approval from the host country, where there is no legal framework that defines the country’s sustainability criteria and basis for approving a climate project, many issues of exclusion, discrimination and lack of participation in climate action are either left unaddressed or unprotected under the local laws.
Additionally, the fact that Nigeria is registered to the KP makes the establishment of the CDM project a veritable option. CDM provides an avenue to reduce the flaring of gas in Nigeria by ensuring that associated gas produced, which would have been flared, is utilised in a CDM project in exchange for carbon credits, thus reducing greenhouse gas emission.
In 2015, the United Nation Environment Programme (UNEP) confirmed a total of 12 CDM projects in Nigeria, covering activities such as landfill gas, hydro, biomass energy and emission reductions. These projects so far have contributed immensely to the economy and environmental sustainable development.
An example of these project is the Kwale-Okpai project in Ndokwa, Delta State which was jointly developed by the Shell-BP, the Netherland, National Agip Oil Company, Philip Oil and the NNPC. The CDM project was projected to reduce emissions through capturing and recovery of associated gas. Consequently, the recovery of associated through this project started in 2006 as at 2010 the total emission reduction generated by the project was estimated to be above 791,325 tonnes of CO2 eq.  The project also generated electricity for the habitat of the region.
Generally, the CDM has presented a potential opportunity for foreign investors to invest in Nigeria thereby improving the Nigerian economy as a result of capital flow into the nation’s economy. This mechanism can make Nigeria become a potential carbon trading market.
Another benefit of CDM in Nigeria is the opportunity for technology and knowledge transfer in the power, oil and gas sector. This technology transfer is a window of opportunity for Nigeria to improve technological and develop its gas and power sector.
Nevertheless, the development of CDM activities in Nigeria is faced with some challenges due to the complex procedure for receiving CDM approvals, such as lack of transparency in the approval process and inadequate opportunities for stakeholder consultation this make the CDM project implementation, time-consuming.
In view of the above, Nigeria has made a tremendous effort both nationally and internationally to mitigate gas flaring in the country. It is worthy of note that the main issue still falls back to the legislative and regulatory framework, without a change of attitude towards the amendment of the regime, the flaring of gas will continue to be a constant issue in the country. Thus, an extensive examination of how gas flaring is regulated in Canada will be analysed in chapter five with a view of determining how Nigeria can take a cue from the country’s law.
THE LEGAL REGIME OF GAS FLARING IN ALBERTA, CANADA
Canada is ranked fifth-largest producer of natural gas and the sixth-largest producer of crude oil, with an average production per day of 3.5million barrels of crude oil and 13.7 billion cubic feet of natural gas. With a business environment that protects and encourages the large investments necessary in the oil and gas sector. In 2004, the World Bank endorsed Canada’s legislative and regulatory regime on gas flaring and recommended it as a standard to be emulated around the world. Thus, an examination of the effectiveness of the legislative and regulatory framework and its lessons for Nigeria shall be the focus of this chapter.
5.2 oil and gas industry in Canada
Canada is a landlocked state with four-billion-barrel remaining oil reserved located in Western Canada Sedimentary Basin, which includes most of Alberta and Saskatchewan and parts of British Columbia, Manitoba, Yukon and the Northwest Territories, with Alberta producing 68% of Canada’s oil and 78% of its natural gas in 2006. The petroleum history in Canada commenced in 1883 when the Canadian Pacific Railway first discovered natural gas in Alberta. However, the first significant discovery wherein the Turner Valley, in Foothills of the Rockies, where gas seeps and had long been noticed in 1914. The continuous waste of the gas led to the provincial government establishing the Alberta petroleum and natural gas conservation Board in 1938 to initiate conservation measures for the gas and was successfully implemented.
Furthermore, the discovery of natural gas was a good source of light for the nation but it was oil that was particularly desired by the country. In 1901, the first test well was dug in the Southwest of Alberta but in 1902 a successful oil producing well was dug located in the present-day Waterston Lakes National Park Alberta, Canada. In 1948, production of Oil began in its rapid rise.
Canada’s oil and gas industry is “a primary driver of its economy” as the Country became a global producer of petroleum resources. In association with this production, large amounts of gas are ﬂared or vented just like the case of Nigeria. Although, the amount of gas flared and vented was reduced significantly by 72 per cent between 1996 and 2005. The reductions were due to changes in regulations, new technologies and adoption of “best practices” by industry.
5.3 Governmental jurisdiction and ownership.
Canada operates a federal system of government and the jurisdiction over energy is divided into the federal, the provincial and the territorial government. The regulation of oil and gas in Canada is under the jurisdiction of the province as the government have jurisdiction over exploration development, conservation and management of non-renewable energy and production of electricity. In Canada, the province government owns the natural gas, petroleum and coal reserve as section 92A of the constitution confirm on them the exclusive authority to make laws in relation to non-renewable resources and electricity and energy.One of such province is Alberta. However, legislative authority is also divided, as powers relating to the management and sale of oil and gas rest with Alberta, while the federal Parliament exercises control over trade and commerce, interprovincial pipelines, and taxation. Participants in the oil and gas industry are subject to both the federal and the provincial regulators because these levels of government share legislative authority in the development of natural resources and the environment.
The ownership of oil and gas in Alberta is split among the provincial crown, the federal crown, aboriginal groups, the successor of a private corporation and individuals who was historically granted ‘freehold estates’. The provincial crown is the owner of approximately 81% of the mineral rights in Alberta. The oil and gas freehold lands can be bought and sold to private individuals or company but the province and the federal crown regulate their activities.
The oil and gas regime in Canada is concession based. The owner of the minerals usually grants a company lease or licence that gives the lessee an exclusive right to explore drill for and dispose of mineral in an approved manner for a period. At the expiration of the lease if no oil is explored the right to oil and gas revert to the crown.
The crown enjoys dual capacity as a proprietor of the mineral resources and a legislator. In its capacity as a proprietor, its convey interest to the oil and gas via contract, thereby giving right to contractual obligations that will be binding between the parties. As a legislator, it incorporates terms that allow regulatory changes to take effects. Thus, future legislation is binding on the lessees as a term of the contract.
In the light of the above, the ownership of oil and gas in Alberta are factors that affect the regulatory capacity of the government. Thus, an examination of the regulatory regime of Albertan government in relation to gas flaring will be analysed below.
5.4 Legislative and Regulatory Framework Mitigating Gas flaring in Alberta
The mitigation of gas flaring has been a major objective in Alberta for decades this led to the implementation several legislative and regulatory frameworks regarding associated gas flaring and venting. An analysis of the legal regime will be analysed below.
5.4.1 Conservation Board
The tremendous waste of gas generated from the Turner Valley field in the 1930s led to the realisation that the excessive gas production was having a damaging effect on the reservoir, human health, animals and the environment. This brought about a public debate on the conservation of oil and gas which eventually brought forth the Alberta Petroleum and Natural Gas Conservation Board, a predecessor to the Energy Resources Conservation Board (ERCB) to curb such Practice.
The ERCB was formed by the provincial government in 1938, specifically to deal with a large amount of flaring at the time. Its focused on the conservation of the waste gas flared during production activities and sought to establish an equitable regulation in relation to oil and gas resources in Alberta. The Regulations were made to encourage operators to construct a gathering system so that the gas can be processed or marketed.
However, the establishment of the board to ensure effective regulations did not achieve the goal of mitigating gas flaring as more gas where still been flared. Thus, Alberta sort to establish several department and agencies with the responsibility of ensuring effective compliance in regulating gas flaring. These department and agencies include Alberta Environmental Protection (AEP) and the Alberta Energy Utility Board (AEUB) these are the main agencies charged with the environmental regulation of the industry. But the AEUB is the central regulatory agency for the upstream and midstream oil and gas industry for mitigating gas flaring in Alberta.
The AEUB was created in 1995 with an exclusive jurisdiction over al1 matters that were under the jurisdiction of the ERCB. The AEUB is an independent quasi-judiciary agency that regulates energy resources and utilities especially with regards to its rule-making and monitoring powers, its plays sufficient role in the conservation of gas particularly with the negotiation, publication, application and enforcement of gas directive within the province of Alberta. The AEUB exercises approval, regulating and advisory function under certain statutes.
The uniqueness of the AEUB is the centralisation of the agency, thus if a centralised agency is adopted in Nigeria it will achieve a clarity for the purpose of mitigating gas flaring.
Apart from the AEUB regulatory agency, Alberta government allows industry, public and environmental nongovernmental organisations to participate in regulating gas flaring, maintaining air/environmental quality issues and recommending management actions. An example of such is the Clean Air Strategic Alliance (CASA).
- Clean Air Strategic Alliance (CASA).
CASA which was established in 1994, is a multistakeholder partnership of representatives from government, industry and non-governmental organisations, that provides recommendations on policy and regulation to access and improve air quality in Alberta. CASA operates a comprehensive management system that screen issues, sets priorities and delegates task, approves actions plans, and implements and evaluates the plans.The CASA process is viewed as being constructive and including interested parties, and the consensus built helps to forge a strong commitment to implement resulting recommendations.
Although CASA does not have legislative authority, agencies such as Alberta Environment and the EUB receive CASA recommendations and implement subsequent regulations and guidelines, as appropriate. In 1998, CASA established a solution gas management framework for reducing flaring and venting. the framework included a provincial target to reduce routine flaring emissions. Through the CASA works, Alberta as of 2010 reduced flaring emissions by 397 million Ft3 compared with the 1996 based lime of 1.34 billion Ft3.
From the above, the Alberta government encourages non-environmental organisation and the public to engaged in the assessment of the air quality and management action, an attitude which is lacking in the Nigeria regulations. Thus, if adopted will help in the mitigation of gas flaring in Nigeria.
Apart from the regulatory framework and agencies in Alberta, there are also existing legislations for the reduction of flaring. This will be analysed below.
5.4.2 legislations on gas flaring in Alberta
a. The oil and gas conservation Act 2000 (OGCA)
The discovery of oil in Alberta led the Canadian government to grant Alberta control of its natural resources, which resulted in Alberta passing the oil and gas conservation Act in 1932. The Act was reviewed and amended in 2000. The OGCA sets out rules for the purpose of conserving and preventing wastage of oil and gas through licensing and approval requirement.
The Act provides an extensive and detailed definition of waste and wasteful operations. Wasteful operations in gas development to include the escape or the flaring of gas, particularly if,
‘the gas could be gathered, processed if necessary, and marketed, stored for future marketing, or beneficially injected into an underground reservoir. It also extends to the inefficient surface or underground storage of gas, or the production of gas in excess of proper storage facilities, transportation, marketing facilities or market demand for it’.
The OGCA specifically prohibits the commission of waste and wasteful operations. Both corporations and individuals can incur liability for offences under the OGCA
In addition, the OGCA provides that in order to prevent waste the AEUB may require any gas on its production be gathered or processed if necessary and re-injected into an underground reservoir for storage or for other purpose.
However, in contradiction of the OCGA, the oil and gas conservation regulations provide that were a gas well is being cleaned up or tested the amount of gas flared shall not exceed 600 thousand cubic meters including that produced during the initial clean up period unless the prior approval of the AEUB has been obtained. Hence, the OGCA and its regulation can arguably be said to contain no comprehensive provision sufficient to regulate gas flaring in Alberta. Because of this inadequacy, the AEUB in its regulatory capacity has consolidated its requirement in AEUB Directive 060.
- Alberta’s Tool for Regulating Flaring
The AEUB regulates flaring and venting in Alberta’s upstream petroleum industry with Directive 060 – Upstream Petroleum Industry Flaring Guide (2016).It is the province major document of gas flaring regulation. The Directive 060 provides regulatory requirements and guidelines for gas flaring and venting in Alberta, as well as procedural information for the gas management, flare permit applications, industry performance requirement and the measuring and reporting of flared and vented gas.
In addition, the Directive developed a flaring management Decision Tree Analysis (DTA) which forms part of the reduction efforts. This DTA requires operators to eliminate associated gas wherever possible. Where routine flaring cannot be eliminated based on a feasibility test an economic evaluation should be conducted to determine whether the associated gas is economically viable. Although, there are situations where the flare cannot be immediately eliminated the AEUB encourages the use of flare technologies. The operators are also required to assess the environmental, Health and economic impact to the public before considering the decision to flare and conserve gas. The DTA and the economic evaluation have played a significant role in the reductions of associated gas flaring as Alberta has reduced solution gas flaring by 72% since 1996 in 2004.
The Directive 060 also includes requirements to report volumes of flared and vented gas by the operators.  A report of the total volume of gas flared is published by the AEUB annually which indicate the progress of the province on flaring and venting. The aim is to increase awareness to encourage further gas reduction. This signifies transparency in the province an attitude which is significantly absent in Nigeria.
The directive 060 also outline the enforcement associated with failure to comply with AEUB requirements. Non-compliance of the requirement will lead to revocation of an operator right to produce. Removing the right to produce has a significant monetary impact. This stringent provision is one thing that is significantly lacking in Nigeria legislation.
The Alberta success for reducing flaring can be attributed to cooperative efforts of the governmental and non-governmental agencies. The effort of the AEUB cannot be overemphasised as it continuously makes improvement and this provides the opportunity for constant review, to incorporate newly conducted research results and relevant developments in the industry
Apart from the regulatory requirements, the province provides other measures and incentives to make natural gas conservation more attractive to industry. Some of these measures, such as the availability of natural gas markets, are necessary for reducing solution gas flaring, while royalty incentives are deliberate policy measures to aid the reduction of gas flaring.
5.5 Lessons from Alberta Experience
This research has shown a profound difference that exists in the attitude, commitment and legislative approaches between Nigeria and Alberta. Hence, the need for the Nigeria government to increase her environmental efforts is, therefore, essential to prevent adverse health, environmental and economic impact in the country. Nigeria could gain immensely from Alberta’s experience. Although there are few lapses in Alberta environmental regulation, many of its regulatory approaches are worthy of emulation. Below are some of the attitude that Nigeria should emulate.
5.5.1 Monitoring and Enforcement
An essential tool for mitigating flaring is an adequate monitoring and enforcement procedure, if absent in a regulation the rules will be ineffective. The AEUB inspects production well and facilities. The monitoring process ensures that operators with a noncompliance inspection history will be liable for sanctions.
The AEUB has established an “enforcement ladder system” to address noncompliance with regulatory requirements. The enforcement ladder is based on appropriate responses to the seriousness of the noncompliance and provides for escalating consequences if timely remedial actions are not taken or if repeat noncompliance occurs. However, an operator who causes pollution but takes
immediate remedial action to control the problem is not subjected to further sanctions by the AEUB. In severe cases of blatant disregard for regulations, the AEUB may order the shutdown of an operator’s facilities until the operator complies with the regulations.
5.5.2 Funding Arrangement
Funding arrangements for the AEUB include government allocations and proceeds from licences and other approval fees. The AEUB does not therefore depend exclusively on the government for funds to execute its programmes. A degree of financial independence enhances any regulatory regime, which is absent in the present Nigerian situation where agencies staff depend on operators for vehicles to carry out monitoring and investigations. Nigeria regulators should adopt an equivalent AEUB’s funding mechanism, as it may be feasible.
5.5.3 Measuring and Reporting
The AEUB encourages the provision of a meter equipment by the operator to measure the volume of gas flared and vented. The information of the measurement is used to evaluate compliance with flaring reduction targets and to identify significant flaring sites for investigation. This enables the AEUB to know where to focus their efforts for reduction. The information is also used in an annual public report published by the AEUB. The public reporting provides a positive pressure on the operators to do better in their effort to reduce flaring as no one want to be in the worst position.
From the foregoing, Alberta’s approach in mitigating flaring can be regarded as one which the Nigeria government should strive to emulate, as there are provisions on an alternative way to conserve gas, transparency and availability of gas market these are brilliant innovations, that are worthy to be emulated.
RECOMMENDATIONS AND CONCLUSION
There is no doubt that the discovery of oil in Nigeria has contributed immensely to the economy of the country. However, the issues affecting gas flaring exists in the regulatory and legislative regime as analysed in chapter three of this research. This research serves to highlight the need for the Nigeria government to enact and amend the existing legal regime to effectively mitigate gas flaring.
To this end, it is recommended that:
- The Nigeria government should adopt the Alberta commendable approach of mitigating gas flaring by considering the environmental, health and economic impact of the flaring. Nigeria should consider establishing an independent regulatory agency like the AEUB. The agency should be given the powers to regulate and manage the natural resources to prevent pollution emanating from the oil and gas activities and should also monitor, adjudicate and investigate activities of the oil and gas industry. The use of an independent agency will be advantageous to the government as it will help to deflect the criticism levelled against the attitude of the government towards the environmental regulations. The propose Agency should also have legal authority to restrain polluters instead of the present authority that created an exception which exist in the pleasure of the Minister of Petroleum.
- The Nigeria existing legislation should be amended with the view of inserting stringent sanctions which will deter oil companies from further flaring of gas.
- The principle of conservation which has been actively used in Alberta to achieve massive reduction in gas flaring should be consider in Nigeria, rather than letting the flare gas to waste. The conservation of gas will go a long way especially in the aspect of providing electricity in the country.
- The governmental regulatory agencies such as the MPR and the NESREA should be given monitoring and enforcement powers. Also, financial and technical support is required to enable the agency enforce the provision of the legislation.
- The Multi-stakeholder approach adopted by Alberta should also be consider. Although, there are existing non-governmental agencies in Nigeria, an example is the Friends of the Earth. They should be given an opportunity to participate in the decision-making process for mitigating flaring, in so doing it will create room for public participation which will enable citizen express their view on the effect of the activities.
Finally, there is no doubt that the Nigeria government had made efforts in setting deadline to stop gas flaring in the country, but instead of setting deadlines the government should develop specific policies specifying gas flaring reduction targets for oil companies to achieve. In addition, the report of the amount of gas flared should also be reported by the oil companies and submitted to either the proposed independent agency or the NESREA which will then be publish to the public. This report shall signify transparency of the government and the oil companies towards gas flaring in the country.
This research has attempted to evaluate the existing legal regime mitigating gas flaring in Nigeria. As finding has shown, the Nigeria government are more concern on the economic benefit derived from the exploration of oil and gas activities thereby neglecting to enact stringent sanctions to the to mitigate the effect of oil and gas activities. Thus, the need for a serious review of the existing legislative and regulatory framework is required.
I forestall that the Alberta approach and regulatory experience examined and analysed in this research in conjunction with the recommendation will achieve double fold effect in mitigating flaring in Nigeria.
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 Section 3(2) of The Associated Re-Injection Act of 1979
 Section 4(1) of the Association Re-Injection Act of 1979
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 Ibid 334
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 Ibid 75
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Francis N. Botchway,’Natural Resource Investment and Africa’s Development’ (2011) 77
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 bironke T. Odumosu, (n12) 876
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Irekpitan Okukpon, (n85) 34
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 Regulation 42
 Nii Nelson (n50) 58
Kenneth Omeje (n68) 234
 Olufemi Amao, ‘Corporate Social Responsibility, Human Rights and the Law’ (2011) 138
 Section 2 (1) (a-b) of the Associated Gas Re-Injection Act of 1979
 Ibid Section 3 (1)
 Ibid Section 4 (1)
 Ibid Section 4 (2)
 Dorceta E. Taylor, ‘Environment and Social Justice: An International Perspective’ (2010) 333
 Section 3(2) of the Associated Gas Re-Injection Act of 1979
 Olufemi Amao (n119)138
 Ibid 139
 Kenneth Omeje (n68) 237
 Marco Armiero and Lise Sedrez, ‘A History of Environmentalism: Local Struggles, Global Histories’ (2014) 68
Frank Maes, (n24) 133
 Irekpitan Okukpon, (n85) 39
 Macro Armilero, (n129) 68
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 Irekpitan Okukpon, (n85) 44
 Associated Gas Re-Injection Amendment Act of 2010.
 Ibid section 3(1).
 Ibid section 3(2).
 Alan J. Kuperman, ‘Constitutions and Conflict Management in Africa’ (2015)86
 Habibu Ahmed Sharif (n51) 45
Petroleum Industry Bill 2012, Section 1 (g, h and j)
 Ibid section 277 (1)
 Ibid section 277 (3)
 Ibid section 278 (a)
 Ibid section 279
 Ibid section 281
 Ibid section 280 (1)
 Ibid section 280 (2-6)
 Habibu Ahmed Sharif (n51) 45
 Ibid 46
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 Rio Declaration in Environment 1992 31 ILM 874
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 Toyin Falola and Bukola Adeyemi, ‘Nigeria’ (2015)
 Ifeoha Azikiwe, ‘Nigeria: Echoes of the Country’ (2013) 165
 Ibid 167
 Ottavio Quirico and Mouloud Boumghar, ‘Climate Change and Human Rights’ (2015) 332
 Section 33 and 34 of the 1999 Constitution of the Federal Republic of Nigeria.
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 Ibid Section 7
 Ibid section 11
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 Ibid 59
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 Section 8 (e)
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Hakeem Ijaiya (n180) 315
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Irekpitan Okukpon, (n85) 17
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Ernest Aniche (n66) 76
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 Ibid 36
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 Ibid 7
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 Ibid 12
Jude C. Okafor (n215) 49
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Top of Form
Bottom of Form
 Surendran Pillay
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Robert D. Bott (n260) 9
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 Ibid 42
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 Ibid 31
 James Marsh, ‘Canadian Encyclopaedia’ (1999) 1795
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 Ibid 34
 James Marsh (n271) 1795
 Irekpitan Okukpon, (n85) 67
 Ibid 68
 David Breen (n257) 12
 Ibid 12
 The World Bank (n214) 4
 David Breen (n257) 12
 Ibid 20
 Irekpitan Okukpon, (n85) 67
Bruce Deorn and Robert Johnson, ‘Rule: Multilevel Regulatory Governance’ (2006) 295
 Ibid 295
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 Eric Taylor, ‘Air Quality Management: Canadian Perspective on Global Issues’ (2013) 196
 The World Bank (n13) 33
 Ibid 33
 Eric Taylor (n287) 196
 Kevin Percy (n286) 38
 Christian Campbell, ‘Legal Aspect of doing Business in North America’ (2009) 41
Oil and Gas Conservation Act 2000, Section 4 < http://www.qp.alberta.ca/documents/Acts/O06.pdf> accessed 21 April 2017
 Ibid section 1 (ddd ) v- vii
 Ibid section 110 (1)-(2)
 Ibid section 38 (d)
 Oil and Gas Regulations, Alberta Regulation 151/7 <http://www.alsa.ab.ca/Portals/0/PDF/Member_Resources/Historical_Acts_and_Regulations/OGCR_2007.pdf> accessed 21 April 2017
 Directive 060 (2016) http://www.aer.ca/documents/directives/DraftDirective060.pdf.> accessed 22 April 2017
 Ibironke T. Odumosu, (n12) 885
 Section 2-6 of the Directive 060
 The world Bank (n214) 14
 Ibid 14
 Section 2.9 of the Directive 060
 Ibid Section 7
 Irekpitan Okukpon, (n85) 75
 Michael Brown ‘Alberta’s Tool for Regulating Flaring’ <canada_reduced_emiss_prog.pdf">https://www.globalmethane.org/documents/oilgas_canada_reduced_emiss_prog.pdf> accessed 22 April 2017
 Section 10 of the Directive 060
 Ibid Section 1.4
 Irekpitan Okukpon, (n85) 75
 Section 3.3 of the Directive 060
 Michael Brown (n306)
 Ibironke T. Odumosu, (n12) 886
 Ibid 886
Anastasiya Rozhkova, ‘ Lessons from International Experience’(2011) 10 http://siteresources.worldbank.org/INTGGFR/Resources/578035-1164215415623/3188029-1324042883839/1_International_Practices_in_Policy_and_Regulation_of_Flaring_and_Venting_in_Upstream_Operations.pdf
 Ibid 10
 The world Bank (n214) 40
 Ibid 40
 Section 3.3 of Directive 060
 David Iyalomhc (n283) 136
 Ibid 136
 Ibid 136
 The world Bank (n214) 39
 Ibid 39
 Section 1.4 of the Directive 060
 James Vaughan, Flare and Vent Reduction Alberta’ (2010) 13 <http://siteresources.worldbank.org/EXTGGFR/Resources/578068-1268075357274/6844507-1268075379153/1410-1440_James_Vaughan.pdf. > accessed 22 April 2017