50 Between four farmers and Shell

This article was written in February 2013[1]

The Niger Delta of Nigeria is one of the few territories in the world with a huge reserve of crude oil that is both sweet and easy to reach. The crude found here is called sweet because it is of the light variety as opposed to heavy type and has low sulphur content. It is easy to reach because a lot of that oil is onshore and also by the fact that Nigeria can easily be accessed by sea.

The sweetness of the crude has over the past five decades brought bitter experiences to the people of the Niger Delta and the totality of their environment. Oil companies operate here with an audacious level of impunity that cannot easily be comprehended by external observers.The question often asked is why the Nigerian government has not stepped up to defend her people and the environment. A part of the answer is that the hands of government have been tied because they are in joint partnership with the polluting oil companies and share in the financial benefits of the on-going rape.

The struggles of the Niger Delta peoples and communities to secure justice have been going on for several years. It has been a long and arduous struggle. We can mention the revolutionary uprising led by Isaac Adaka Boro[2] in the 1960s, the non-violent struggles by the Movement for the Survival of Ogoni People (MOSOP), the Ijaw Youth Congress (IYC), the Ilaje youths and other nationalities of the Niger Delta.

Litigation has been a veritable tool that has brought mixed results. The Ijaw Aborigines sued Shell Petroleum Development Company Limited (SPDC or Shell) to the National Assembly for decades of environmental degradation. When Shell refused to honour the outcome, the case was taken to the courts in Nigeria[3]. The battle is still on. The Ilaje youths sued Chevron in the courts of San Francisco for human rights infringement committed against them on 28 May 1998 when the oil company flew in troops to attack protesting youths on Chevron’s Parabe offshore platform, killing two and injuring others in the process. That case ended after a stretch of ten years with Chevron acquitted of any wrongdoing.[4] The human rights case over the murder of Ogoni leaders brought against Shell in New York produced a more positive result with the oil company accepting guilt.[5] The same has been witnessed in the case against the company for 2008 and 2009 oil spills in Bodo, Ogoni in the courts in the United Kingdom.[6] Furthermore, a decisive judgement against Shell was obtained in November 2005 in the High Courts in Benin City, Nigeria, when the judge ruled in a case brought by Jonah Gbemre of Iwerekhan community in Delta State, that gas flaring is an illegal, unconstitutional activity and should be stopped.[7]The flares still roar as we write this.

The long route to justice

On 30 January 2013 a Dutch court made a ruling in the case of four farmers against Shell in The Netherlands.[8] The significant success in this case includes the fact that Shell was made to stand in the dock in its home country for environmental offences committed in Nigeria where their subsidiary Shell or SPDC operates. Let us look closely at these cases.

Eric Barizaa from Goi community in Gokana Local Government Area of Rivers State represented his deceased father, Chief Barizaa Dooh.The oil spill in Goi for which the case was brought occurred in 2004. Alali Efanga from Oruma community in Ogbia Local Government Area of Bayelsa State was the plaintiff over the oil spill that occurred in 2006. The plaintiff for another oil spill in Oruma is Fidelis Ayoro Oguru. That spill also occurred in 2006. Elder Friday Akpan from Ikot Ada Udo community in Ikot Abasi Local Government Area of Akwa Ibom State sued Shell for a massive spill that occurred there in 2008. The fifth plaintiff was Milieudefensie/Friends of the Earth Netherlands. Environmental Rights Action/Friends of the Earth Nigeria provided further support on the case.

The defendants in all the cases were the Shell Petroleum Development Company of Nigeria Ltd and the parent company, Royal Dutch Shell Plc.

The plaintiffs went to court seeking that Shell be held liable for the oil spills in the three communities of the plaintiffs and order the company to maintain its pipelines to guarantee that no more oil spills occur in the future; to clean up the oil pollution in their communities and to pay adequate compensation to the farmers for the damages suffered as a result of the spills.

High points

The case was filed in 2008 and all the preliminary processes including the issue of jurisdiction where determined in favour of the plaintiffs in 2009 with the court in the Hague deciding that it had the jurisdiction to hear the case. The issue of whether the case was the same as the one in Nigeria with reference to Elder Friday Akpan of Ikot Ada Udo was determined in favour of the Plaintiffs in 2010. The court held that the case in The Hague was not the same.

One major setback for the plaintiffs was recorded in 2011 when an application calling on Shell to open its  books for inspection and copying by the Plaintiffs was decided in favour of the Defendants. This denial of access to the documents that could have shown the clear links of decision-making processes between SPDC and the Royal Dutch Shell made it impossible for the plaintiffs to prove that aspect of the case. By the ruling of the court, although SPDC is a subsidiary wholly owned by the Royal Dutch Shell, the parent company could not be held liable for their actions.

The full hearing on the cases was held over six hours on 11 October 2012. It was at that hearing that the judgment date of 30 January 2013 was fixed.

The judgment delivered on 30 January 2013 was significant mostly in the fact that for the first time Shell was in the dock in The Netherlands for environmental crimes committed outside the country, in this case in Nigeria. Although Shell could celebrate that they were acquitted of polluting Oruma and Goi Communities, the company was found guilty of polluting Ikot Ada Udoh environment. In fact, observers believe that Shell was acquitted on the other cases simply because the court chose to believe a few grainy videos and photographs produced by Shell as evidence of third party interferences in those incidents. The denial of access to essential documents also gave the parent company the right to draw massive profits from their polluting oil fields in Nigeria while washing their hands of the environmental costs heaped on the communities and the nation at large.

Who sabotages whom?

Significantly the court ruled that Shell was guilty in the case of Ikot Ada Udo because they ought to have taken enough care to avoid their installations being ‘sabotaged’. The chorus of ‘sabotage’ of oil installations has been the song of irresponsible oil companies who use that excuse to avoid liability for rusty and ill-maintained facilities that continue to erupt. This claim has been made attractive by Nigerian laws that absolve oil companies of liabilities where incidents are caused by sabotage. Unfortunately, the definition of sabotage appears to have been equated with just any interference by a third party. Because of this even common thefts from pipelines are labelled acts of sabotage whereas acts of sabotage are of more profound nature and are often political in intent. We note that by the court’s ruling even with sabotage it must be shown that it could not have been prevented.

The plaintiffs from Goi and Oruma have signalled their readiness to appeal the judgment of the court. As we said on the day of judgment, finding Shell guilty of the spill at Ikot Ada Udo is commendable but we are waiting to see how Shell can celebrate the faulty conclusion reached by the court that they can be exonerated from the ecocide at Goi and Oruma. Goi in Ogoni is a community that is completely sacked by Shell’s pollution and all community people from here have been forced to seek refuge elsewhere as environmental refugees.

Shell’s disdain for the wellbeing of communities that suffer the impacts of its reckless exploitation of oil in the Niger Delta has been legendary. The spill at Ikot Ada Udo lasted for months and in open farmland and yet Shell had the temerity to fight to avoid culpability. It is just and fair that it be held accountable for this crime. Shell’s reign of double standards must not go unchallenged.

  1. No longer available online
  2.  https://en.wikipedia.org/wiki/Isaac_Adaka_Boro (accessed 7 June 2016)
  3. Rhuks Temitope. The Judicial Recognition and Enforcement of the Right to Environment: Differing Perspectives from Nigeria and India. http://nujslawreview.org/wp-content/uploads/2015/02/rhuks.pdf (accessed 7 June 2016)
  4. Earthrights International. Bowoto v. Chevron Case Overview. https://www.earthrights.org/legal/bowoto-v-chevron-case-overview (accessed 7 June 2016)
  5. John Vidal.10.06.2009. Shell settlement with Ogoni people stops short of full justice. The Guardian (UK). http://www.theguardian.com/environment/cif-green/2009/jun/09/saro-wiwa-shell (accessed 7 June 2016)
  6. Elodie Aba. Shell & the Bodo Community – settlement vs. litigation. http://business-humanrights.org/en/shell-the-bodo-community-–-settlement-vs-litigation (accessed 7 June 2016)
  7. Pollution as a Constitutional Violation: Gbemre's 2019 Case. http://www.scribd.com/doc/21340644/Pollution-as-a-Constitutional-Violation-Gbemre-s-Case-by-Labode-Adegoke#scribd (accessed 7 June 2016)
  8. Ivana Sekularac and Anthony Deutsch. January 30, 2013. Dutch court says Shell responsible for Nigerian spills. http://www.reuters.com/article/us-shell-nigeria-lawsuit-idUSBRE90S16X20130130 (accessed 7 June 2016)


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