Forum explores implications of polluters’ judgment for environmental justice

Over the last six decades the Niger Delta region of Nigeria has been immersed in extensive environmental pollution from the activities of oil and gas corporations. These pollutions have accounted for severe damage to communities, livelihoods and raised health challenges that have plunged life expectancy to 41 years.

The people of the region have responded in several ways, notably through a recourse to the law courts in Nigeria and beyond. One amongst such cases was the court case where four farmers and fishers from Akwa Ibom, Bayelsa and Rivers states respectively in partnership with Friends of the Earth Netherlands sued Shell to a Dutch court.

The case was filed by four Nigerian farmers in 2008, who alleged that widespread pollution on their land was caused by leaks from Shells’ oil infrastructure due to a lack of repair and maintenance.

The case went a step further above the judgment that was given by a lower court on January 30, 2013 when Shell was held liable for the pollution at Ikot Ada Udoh. This current case that led to the victory held Shell liable for all the environmental pollution and degradation in Oruma, Goi and Ikot Ada communities in Niger Delta region of Nigeria.

The decision on the Oil Spills in Oruma, Goi declared that SPDC vis-à-vis Oguru, Efanga and the other residents in the vicinity for whom Milleudefensie (MD) is representing, held Shell (i) liable for the damage resulting from the leakage at Oruma on 26 June 2005 and  (ii) acted unlawfully by not acting before that date  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. The decision:

• 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 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.

Thirteen years had passed by the time the Appeal Court on January 29, 2021 ruled in favour of three out of the four Nigerian farmers holding that Shell must compensate them for the damages caused by the oil spill pollution. The Court also held that Shell International has “duty of care” to ensure that their Nigerian subsidiary behaves responsibly in its operations. In the case of Ikot Ada Udoh, the Court asked for more details to figure out the extent of the pollution there.

The farmers involved are 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), 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.

In a similar vein, on February 12, 2021, another lawsuit also brought against Shell was won by two other communities in Nigeria who were given the right to sue Shell in the United Kingdom for the environmental atrocities committed in the communities in Rivers State, Nigeria.

Health of Mother Earth Foundation (HOMEF) on February 23, 2021 hosted a Roundtable to unpack the implications of the judgements for the quest for environmental justice by the people of the Niger Delta. The meeting had participants including lawyers, law students, youths, members of civil society organisations, representatives from host communities’ network and the media.

The participants interrogated the judgements based on presentations by Barr Chima Williams (one of the lawyers for the four farmers/fishers), Comrade Celestine Akpobari (a frontline Ogoni environmentalist) and discussions lead by Rev David Ugolor with Emem Okon, a frontline women environmental advocate in Niger Delta as moderator.

The Roundtable observed that:

1. International Oil Companies (IOCs) use divide and rule tactics to cause crises in host communities while continuing to carry out their polluting extractive activities.
2. The judgements clarified that parent companies can be held accountable for ecological crimes committed by their subsidiaries and has restored hope to the communities.
3. The forum observed that IOCs have a general duty to prevent further leaks as much as possible and limit damage as a result of leaks from their facilities.
4. The unending pollution in the Niger Delta can be summed as blatant ecological and economic corruption which leads to ecocide.
5. The UNEP report has created a baseline for the environmental assessment of the whole Niger Delta region.
6. The judgement reflects the power of solidarity across communities in the global south, highlighting the power of people united for a common cause.
7. No more hiding place for Shell and by extension other environment destroyers.

• The forum further observed that international companies control the oil fields thus the majority shareholding by the federal government does not protect the people.

Following the observations the following demands were made by the participants:

1. The Nigerian judiciary should strictly hold polluters to account on all rulings made with regard to socioeconomic and ecological harms in the Niger Delta.
2. Cases should be dispensed swiftly to ensure that plaintiffs see justice in their lifetime.
3. Oil companies should stop polluting the Niger Delta and should take immediate steps to clean up current and historical pollutions in the region.
4. The IOCs should adequately compensate individuals and communities affected by their environmental harms.
5. Shell should ensure that the four farmers’ compensations are urgently negotiated and paid and their environment properly cleaned up.
6. The government and Chevron should as a matter of urgency put out the rig fire burning at Ororo well 1, Oil Mining Lease (OML) 95  off the shores of Ondo State which has been on for 9 months now.
7. There should be a meeting with the leadership of the national assembly in order to analyze the judgment details and draw some strategic lessons from it.
8. Shell must install the leak detection system (LDS) to forestall further leakages into the environment.

The demands from the roundtable were signed by: African Network for Economic and Environmental Justice (ANEEJ), Environmental Rights Action /Friends of the Earth Nigeria, Oilwatch International /OWN, Ogoni Solidarity Network, Host Community Network of Nigeria (HoCON), Kebtkache Women Development and Resource Centre, and Health of Mother Earth Foundation (HOMEF).