by Eddy Wifa and Titilayo Adebola
–
On 29 January 2021, thirteen years after four Nigerian farmers and fisherfolks, Chief Fidelis Oguru, Mr Alali Efanga, Chief Barizaa Dooh and Elder Friday Alfred Akpan, instituted lawsuits in the Netherlands with the support of Milleudefensie, the Hague Court of Appeal found Royal Dutch Shell’s (Shell) subsidiary, Shell Petroleum Development Company of Nigeria (Shell Nigeria), liable for oil spills in the Niger Delta villages of Goi and Oruma.[1] The plaintiffs who depend on farming and fishing for their livelihoods made three demands from Shell. First, to stop and prevent future oil spills from its pipelines. Second, to clean up the wide-spread environmental pollution resulting from the oil spills. Third, to take responsibility for the actions of its subsidiary in Nigeria and pay damages as appropriate. Although Shell disclaimed liability for the actions of its subsidiary arguing that the oil spills in Goi and Oruma between 2004 and 2005 were caused by third party sabotage, the Court of Appeal held Shell liable for the spills according to Nigerian laws, following Shell’s inability to prove the sabotage beyond any reasonable doubt. Conversely, the Court established that the oil spills in Ikot Ada Udo were outcomes of sabotage but concluded that it needed additional time to decide due to insufficient answers to pertinent questions such as “the extent to which the contamination has spread” and “whether the contamination is still of such a nature that remediation is required.” After a damage assessment procedure, the Court will determine and disclose the damages to be paid to the three successful plaintiffs (or next of kin).[2] In the meantime, the Court ordered Shell and Shell Nigeria to install adequate leak detection systems in its pipelines at Oruma.
While these lawsuits are illustrative of the plethora of cases on oil spills against multinational companies and their subsidiaries instituted within and outside Nigeria, one of their ground-breaking implications is establishing a “duty of care” on parent companies. Put differently, parties can sue parent companies, located/headquartered in foreign jurisdictions, for the actions of their subsidiaries. It is expected that the judgement will engender the institution of more environmental pollution-related lawsuits both in the countries where the pollution occurs and in relevant foreign headquarters. In the past, farmers and farming communities from the Niger Delta have instituted similar oil spill or environmental pollution lawsuits against Shell in foreign jurisdictions. For example, the highly publicised Okpabi and Others v Royal Dutch Shell Plc and another [2018] EWCA Civ 191 filed by 42,500 representatives of Ogale and Bille communities in the United Kingdom in 2015, which has since progressed to the Supreme Court. The Supreme Court heard the case on 23 June 2020, but it is yet to deliver judgement. Unlike its Dutch counterpart, the United Kingdom’s Court of Appeal maintained that it lacked jurisdiction to hear the case against the United Kingdom listed Shell and its Nigerian subsidiary.
While we await the determination and disclosure of damages for the three successful plaintiffs as well as the decision for the pending case, it is essential to emphasise that no amount awarded can indemnify the plaintiffs and communities for the irreparable intergenerational loss of dignity, lives, livelihoods alongside the obliteration of biodiversity, flora, fauna and piscifauna. Indeed, the four plaintiffs’ accounts are poignant reminders of the continuing challenges confronted by the over 30 million victims of environmental injustice in the resource-rich Niger Delta.
Chief Fidelis Oguru: “I grew fruit and vegetables before the spill. I wasn’t rich, but we could live on it just fine. Now I can no longer grow anything on my fields. After a while the crops die, just like that. Sometimes I go to other villages and I beg them if I can use a piece of their land. We now have to live on that.” Mr Alali Efanga: “Our only water source is polluted by the oil, so we have to get clean drinking water in other ways. We can go to the pump that the government has given us, but it very often does not work. Sometimes there is nothing else than to wait. Until it starts to rain, so that we have fresh drinking water. There are people who are so thirsty that they drink from the river anyway. But you can just see the oil floating on it, so that is very dangerous…Since the pollution, the number of miscarriages in our village has also increased.” Chief Eric Dooh: “Before the oil leaked here, everyone in the village had good food, good fish. Not only to eat ourselves, but we also earned money by selling the fish. That’s all over now. The oil is in everything. In the air we breathe, in our drinking water and in the food we eat. Our people eat, drink and inhale crude oil, so they die young.” Elder Friday Alfred Akpan: “Our crops and our fruit have been poisoned by all the oil that leaks into the ground. Because people are hungry, they eat this food anyway. As a result, many people die at a young age. Everyone in this village is sick from the pollution… years ago my fishing pond was still full of fish. I had enough money to feed my wife and children and send them to school. But not anymore. The fish is gone, so there is no more money.”
In responding to the judgements, Mr Nnimmo Bassey (MFR), an eminent environmental justice advocate and Director, Health of Mother Earth Foundation (HOMEF), graphically asserts as follows. “The ruling brought a bright light in the dark tunnel of degradation that oil companies such as Shell have brought to the Niger Delta. It signals that other victims in Nigeria and elsewhere in the world should step forward to hold TNCs accountable for despoliation of their environments. The ruling came to remind us that polluters must eventually pay no matter for how long they hide! The evidence was overwhelming and has refused to disappear even after thirteen years. There are some crimes that are hard to hide. Environmental crimes are of that sort. It takes willful blindness to pretend not to see, smell or feel. We are happy that Shell has been told the truth that they must pay for the extreme harm they have inflicted on the people and the environment. It took long, two plaintiffs died, but their struggle has not been in vain. No corporation -private or public- should ever think they can commit Ecocide in the Niger Delta and not be held accountable.”[3]
To be sure, oil spills, environmental degradation and environmental justice in the Niger Delta are complex and multifaceted matters that have prompted protracted and unending battles. While as Shell argued, the roles of sabotage, militia groups and oil bunkering activities should not be ignored, the lawsuits underscore a deep decay of the fragmented ecological governance regime in Nigeria. One in which the interconnections between food systems, food security, food sovereignty and environmental justice are disregarded. The decisions deliver another opportunity for all stakeholders, including the federal and state governments, regulatory authorities, multinational companies, landowners, civil society organisations and the general public, to collaboratively undertake responsibility for rebuilding and restoring the Niger Delta’s fragile environmental ecosystem.
Decision on the Oil Spills in Oruma.
The court (in cases a and b):
- sets aside the judgment of the District Court of The Hague of 30 January 2013, given between the parties, and again giving judgment:
* declares that SPDC vis-à-vis Oguru, Efanga and the other residents in the vicinity for whom Milleudefensie (MD) is representing (i) is risk liable for the damage resulting from the leakage at Oruma on 26 June 2005 and (ii) acted unlawfully by not acting before that date in / to install an (adequate) Leak Detection System (LDS) on the Oruma pipeline , and orders SPDC to compensate Oguru and Efanga for the damage resulting from (i) and (ii), to be prepared by state and to settle according to the law;
* orders SPDC to provide the Oruma I pipeline and the Oruma II pipeline (and to keep it fitted as long as these pipelines are in use as main or backup pipeline) with a Leak Detection System (LDS) within one year of notification of this judgment as referred to in para. 6.43 and orders Shell Petroleum Development Company of Nigeria (SPDC) to jointly pay MD et al. A penalty of € 100,000 for each day (part of a day counted as a day) that it does not comply with this order;
* orders Royal Dutch Shell (RDS) to ensure that within one year of notification of this judgment the Oruma I pipeline and the Oruma II pipeline are provided (and remain equipped as long as these pipelines are in use as main or backup pipeline) with a Leak Detection System (LDS) as referred to in para. 6.43, and orders RDS to jointly pay MD et al. A penalty of € 100,000 for each day (part of a day counted as one day) that it does not comply with this order;
* rejects the additional or otherwise claimed;
* compensates for the costs of the proceedings in the first instance, so that everyone bears his own costs;
- rejects the (for the first time on appeal) more or different claim;
- compensates the costs of the proceedings on appeal, so that everyone bears his own costs;
- determines that SPDC will bear the costs of the experts attributable to case b amounting to € 22,420.09 and £ 8,500.00;
- declares this judgment as enforceable as far as possible.
This judgment was delivered by mrs. JM van der Klooster, MY Bonneur and SJ Schaafsma and pronounced in open court on January 29, 2021 in the presence of the registrar MJ Boon.
Decision on the Oil Spills in Goi.
The court (in cases c and d):
- sets aside the judgment of the District Court of The Hague of 30 January 2013, given between the parties, and again giving judgment:
* declares that SPDC vis-à-vis Dooh and the (other) local residents for whom MD is standing up, (i) is risk liable for the damage resulting from the leakage at Goi on October 10, 2004 and (ii) has acted unlawfully by not already acting on 10 October 2004 to cut off the oil supply in the Goi pipeline, and condemns SPDC to compensate Dooh for damages resulting from (i) and (ii), to be prepared by state and to settle according to law;
* rejects the additional or otherwise claimed;
* compensates for the costs of the proceedings in the first instance, so that everyone bears his own costs;
- rejects the (for the first time on appeal) more or different claim;
- compensates the costs of the proceedings on appeal, so that everyone bears his own costs;
- determines that SPDC will bear the costs of the experts attributable to case c in the amount of € 22,420.09 and £ 8,500.00;
- declares this judgment as enforceable as far as possible.
This judgment was given by mrs. JM van der Klooster, MY Bonneur and SJ Schaafsma and pronounced in open court on January 29, 2021 in the presence of the registrar MJ Boon.
Decision on the Oil Spills in Ikot Ada Udo.
The Court (in cases e and f), before making any further decision, in both cases:
- refers the case to the role of Tuesday 20 April 2021 for commenting – if possible, by both parties together and otherwise first by Shell – on the questions mentioned in considerations 7.2.2 above and onwards.
Thus pointed out by mrs. JM van der Klooster, MY Bonneur and SJ Schaafsma and pronounced in open court on January 29, 2021, in the presence of the registrar MJ Boon.
[1] Chief Fidelis Oguru and Mr Alali Efanga (plaintiffs/appellants in cases a and b) are from Oruma, a village in Bayelsa State in the Federal Republic of Nigeria (Nigeria), Chief Barizaa Dooh (plaintiffs/appellant in cases c and d) is from Goi, a village in Rivers State, Nigeria while Elder Friday Alfred Akpan (plaintiffs/appellant in cases e and f) is from Ikot Ada Udo, a village in Akwa Ibom State, Nigeria. The Niger Delta comprises nine coastal states in the southern parts of Nigeria: Abia, Akwa-Ibom, Bayelsa, Cross-River, Delta, Edo, Imo, Ondo and Rivers.
[2]Sadly, *Chief Barizaa Dooh and Mr Alali Efanga passed away in 2012 and 2016 respectively. *Chief Eric Barizaa Dooh replaced his father.
[3] Authors Personal communication with Mr Nnimmo Bassey (MFR) on 30 January 2021.
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This report was first published at https://www.abdn.ac.uk/law/blog/triumph-for-farmers-and-fisherfolks-the-hague-court-of-appeal-finds-shell-liable-for-oil-spills-in-nigeria/
Dr Titilayo Adebola and Dr Eddy Wifa are of the School of Law, University of Aberdeen.
