Oil spills: Dutch, British judgments that rekindle hope for Niger Deltans

January 29, 2021 will remain memorable to the oil-rich Niger Delta communities because that was the day the Appeal Court in The Hague, Netherlands, delivered a groundbreaking judgment on three separate lawsuits brought by four Nigerian farmers over oil spills in three villages: Goi, Oruma and Ikot Ada Udo, in Rivers and Bayelsa States respectively. The oil spills rendered the claimants’ farmlands and fishponds useless.

The court had declared that Royal Dutch Shell Subsidiary was liable for the spills that have devastated the above-mentioned communities in the Niger Delta. The judgments are said to be historic as it is the first time Shell’s parent company has been found liable for a ‘breach of duty of care’ regarding abuses committed abroad by its foreign subsidiary company. 

The farmers – Chief Fidelis Oguru, Mr. Alali Efanga, Chief Barizaa Dooh and Friday Alfred – had in 2008, in partnership with Friends of the Earth Nigeria (FoEN) and Environmental Rights Action (ERA), filed the suits against Royal Dutch Shell (RDS), headquartered in The Hague, Netherlands, and its Nigerian subsidiary, Shell Petroleum Development Company (SPDC).

The farmers in their suits had argued that the oil giant failed to take measures to prevent and mitigate the oil spill by its subsidiary company SPDC in Nigeria. The judgment noted that Shell’s experts were not able to establish that the oil spills were caused by sabotage beyond reasonable doubt; it clarified that the parent company has a duty of care in the activities of its subsidiaries and should be held accountable for ecological crimes committed by its divisions and not just to relish financial returns from their activities.

ANOTHER notable judgment against Shell in the Niger Delta occurred on February 12, 2021, when the British Supreme Court ruled that more than 40,000 people in the Niger Delta region could make pollution claims against Anglo-Dutch energy giant Shell in English courts. The ruling overturned a 2017 decision against the Ogale and Bille communities in Rivers State, which brought legal claims for clean-ups and compensation following decades of repeated spills in the oil-rich region.

The claimants, His Royal Highness Emere Godwin Bebe Okpabi, had argued for five years that their case against Shell and its subsidiary should be heard in the U.K., because they could not expect justice in a Nigerian court. In their judgment, five judges at Britain’s highest court said the previous decision by the lower Court of Appeal was a “material error of law” and focused too narrowly on the relationship between Shell and its Nigerian subsidiary, reiterating that the oil giant could be sued in English courts, although Shell had argued that it could not be held legally responsible for the pollution in southern Nigeria region and argued that such cases should not be heard in England.

While speaking on the significance of the two judgments, a renowned environmentalist, Dr. Nnimmo Bassey, said the cases meant a lot to the suffering Niger Delta people, whose cry for justice had often been met with indifference or with utter violence as was the case that led to the execution of writer and activist Mr. Ken Saro-Wiwa and the other Ogoni leaders.

Bassey said: “These judgments offer the people some hope that the peaceful fight for justice is indeed to do the right thing by swiftly negotiating and compensating the people and urgently remediating and restoring the environment. The struggle for justice also illustrates the power of solidarity across borders; the judgments highlight the power of people’s unity in collaborating for a common cause.”

Also, Celestin Akpobari, an Ogoni environmental activist, said the judgments have vindicated Saro-Wiwa who died struggling for environmental rights and protection for his people. He said the judgments have brought so much joy and relief to the people and also brought hope to Niger Deltans, as the region’s number one polluter has been brought to book.

Akpobari recalled that the Niger Delta environment has been under serious threat since the 1950s, when the multinationals commenced oil mining activities in commercial quantities in the area.

According to him; “While oil has contributed just a little to the social and economic development of the region and the country because of massive corruption, its associated hydrocarbon pollution and spills have threatened the region’s environment, livelihoods and the health of farmers, fishermen and other members of the society more than anything else.

“Before now, fighting them in any way seems to be an exercise in futility, but we didn’t give up.”
The Guardian investigations revealed that several communities in the Niger Delta like Goi in Ogoni, for over two decades, have become ghost towns due to ravaging effects of oil spills. The high level of pollution forced all residents of Goi to flee the community, who now live as refuges in other communities in Ogoniland and across the Niger Delta. Their water, farmlands, and fishponds have all been polluted. One of the litigating farmers, whose legal tussle against Shell has brought fame and joy to the people, is the traditional ruler of Goi community, Chief Dooh. The monarch has been a refugee in Bodo, another Ogoni community in Gokana Local Government Area, for several years.

Hear him; “I was optimistic about the judgments though I lost in the first lower court, but I told them that I’m going to appeal, because I know my position and condition. There is no oil well, no pipeline in my community; my father doesn’t do oil business. He’s a typical farmer and fisherman and where the oil facility is located is one kilometre away from our farm. But at the end of the day, when pollution occurs and because of the geographical location of my community, which is in-between two oil fields, the pollution spills and flows into our farms.

“Right now, nobody lives in my community. So, this judgment has rekindled our hopes for environmental justice.”
The other farmers, like Oguru and Oruwa from Baylesa State, lauded the judgment, saying it has brought huge relief to them and also rekindled hope for justice for what they have suffered for many years.

Counsel to the farmers and Acting Executive Director, Environmental Rights Action and Friends of the Earth Nigeria (ERA/FoEN), Chima Williams, said the implications of the judgments are that they have emboldened and reawakened the consciousness of all environmental justice campaigners all over the world to the reality of the benefits accruable to a consistent, focused and dogged struggle, that if not today, tomorrow may provide the needed victory to get everyone pushing on.

He asserted; “These judgments could pave the way for more cases against the Anglo-Dutch energy company, such as the one currently taking place in The Hague, which accuses Shell of being one of the main culprits of the global climate crisis.

“These judgments can urge other communities all over the world, where destruction is happening, to also see these judgments as their own, and begin to approach their governments and companies to do the right thing. The judgments set a precedent, to hold transnational companies liable for the violation of peoples’ collective rights, since their parent companies are usually acquitted of any responsibility or guilt for socio-environmental crimes.

“These judgments could give new impetus to the UN negotiations for a Binding Treaty on Transnational Corporations and Human Rights: If we have a binding treaty at the UN level, we’ll take care of countries where there are weak institutions to compel the corporations to behave in those weak countries as they would behave in stronger countries, knowing that by the provisions of the Binding Treaty, they can be held liable at certain levels. The treaty will help cases like this move easier and faster.”

Williams added that the judgments show that there is no more hiding place for Shell and, by extension, all other environmental destroyers from their victims and that the environmental justice movements must use the opportunity and momentum to go after them without applying brakes.

He charged environmentalists that while celebrating the judgments that have come out to embolden all environmental justice campaigners all over the world, they must amplify their strength and voices in the struggle to give the environment and mother nature the desired protection. He added that what this means is that not only Shell, but all the other extractive companies operating across the world, which look up to Shell, must automatically begin to adjust their corporate behaviours towards the environment and people of their host countries.

He therefore expressed the hope that Niger Delta environment would be better served, as a new lease of life would now breathe into it when steps are taken to ensure that the negative and polluting practices of extractive companies across, not only in the Niger Delta, Nigeria, but all over the world are not only questioned but held accountable to victims of such practices.

On his part, former President of Movement for the Survival of Ogoni People (MOSOP), Legbosi Pyagbara, said the judgments have given the Ogoni people a sense of justice and gladdened the hearts of poor Niger Deltans, who have suffered untold degradations in over 50 years of oil exploitation.

MEANWHILE, interactions with some Niger Delta stakeholders, whose environment have been polluted, revealed that the judgments have opened their minds to issues of environmental injustices, which could be taken to court and justice could also be received at the end. Some of the residents noted that justice is difficult to obtain in Nigeria, especially when it concerns poor people like farmers and fishermen, who don’t have money to hire senior lawyers.

Head of ERA, Niger Delta Resource Centre, Bayelsa, Alagoa Morris, captured the situation succinctly, when he said; “Justice in Nigeria is very difficult especially in the oil industry, where community people are too poor to hire the best lawyers, but the oil companies can hire the services of such lawyers. Then the challenge of adjournment of cases is a huge problem here. So, justice for a poor man is not easy in this country.

“With these judgments, the Ogoni and Bodo people have seen what they got from the U.K., because over there, the judiciary is unbiased. They give fair hearing to all parties, whether you have money or not. The Federal Government and the oil companies also have their own influence; the oil companies are very strong. That is why Shell was fighting so that Nigerians don’t take cases to the U.K. But thank God that the Supreme Court in the U.K. has also stated that Nigerians can file cases from Nigeria.”

Morris said the lessons from the judgments should be for the Nigerian government to stop aiding the bad practices of the oil industry and manipulating the judiciary.

“We have heard of some harassment of judicial officers, but then we feel government has made it clear that the judiciary has some bad eggs. So, I think politically and environmentally speaking, the judiciary needs to do more,” he noted.

The environmentalist expressed the hope that the judgments would be swiftly implemented, saying; “Shell is from the Netherlands and it’s the Netherlands’ judiciary that gave the judgment. So, they have a way of enforcing their pronouncements, though Shell still has the right to go to the Supreme Court. But I hope the case doesn’t linger until the litigants are dead.”

He further hinted that the judgment showed that the efforts of activists in the region have not been in vain, stressing that it would also encourage the people not to settle for peanuts or sell themselves cheap. He also lauded the farmers for remaining steadfast till the end.

Similarly, Head of Coalition of Ogoni Women, Dr. Patience Osaroejiji, lamented that in Nigeria, undue influences were exerted on cases, which often drag for a long period.

She said; “We have been crying because of pollution and God has started answering our prayers. You can imagine having a farmland that you cannot farm on, water you can’t drink, food you can’t eat, because of pollution. It’s sad.
 
“If people can have such boldness to pursue their cases through legal means and get judgment, then there is hope. The problem is that people don’t have the boldness to go to court. If we can begin going to court, it will give us more opportunities to fight injustices. Nigeria’s legal system should also learn from these judgments and be courageous in their pronouncements, because the system here is discouraging.” 

HOWEVER, Shell in a statement by the Media Relations Manager of SPDC, Mr. Bamidele Odugbesan, said the oil spills were caused by sabotage.

According to him; “We continue to believe that the spills in Oruma and Goi were the result of sabotage. We are therefore disappointed that this court has made a different finding on the cause of these spills and in its finding that SPDC is liable.

“Sabotage, crude oil theft and illegal refining are major challenges in the Niger Delta. Indeed in 2019, around 95% of spill incidents from our operations there were due to such criminal acts. Regardless of cause, we clean up and remediate, as we have done with the spills in this case. SPDC also works with a range of stakeholders to find solutions to these complex issues. Like all Shell-operated ventures globally, we are committed to operating safely and protecting the local environment.”

It is, however, the hope of many stakeholders that the lessons of these historic judgments would act as catalyst for better relationships between the oil companies and host communities.