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NIGERIAN FARMERS ENVIRONMENTAL CASES AGAINST SHELL

Thousands of barrels of oil spouted out of the broken pipeline at Bodo for 10 weeks before Shell finally clamped it on 7 November 2008. © CEHRD

Pastor Christian Kpandei contemplates the damage done to his fish farm in Bodo, Nigeria, May 2011. The farm flourished before the August 2008 oil spill, but the pollution destroyed his fish farm, leaving him and his workers without a regular income. © Amnesty International

3.2.1 FOUR FARMERS’ CASES

The first of the pollution-related cases marked the first time that any Dutch company had been sued in the Dutch court for the operations of its subsidiaries overseas.

In 2008, four Nigerian farmers (Eric Barizaa Dooh, Fidelis Ayoro Oguru, Alali Efanga and Friday Alfred Akpan), along with Milieudefensie, the Dutch section of Friends of the Earth, filed claims against RDS and SPDC.44

They are seeking to obtain compensation for alleged damage to fish ponds and land caused by oil spills from two underground pipelines and an oil well operated by Shell in the villages of Goi, Ikot Ada Udo and Oruma between 2004 and 2007.45

The farmers and Milieudefensie have also requested that Shell take steps to fully clean up the affected areas and to prevent further spills in the future. Shell denied liability, arguing that it had done nothing wrong, and that the Dutch courts had no competence to make findings regarding SPDC, as this was a separate legal entity registered in Nigeria.46

The case has been through numerous hearings and appeals.47 Most significantly, in December 2015, the Court of Appeal in The Hague recognised the jurisdiction of the Dutch courts in the case. It also ordered Shell to disclose internal documents to provide clarity on the company’s involvement in the spills.48 This ruling meant that the court could finally examine the merits of the claim.

A final court hearing is expected by May 2020. Milieudefensie argues that if the court rules that Shell is indeed liable for the oil spills and resulting damage, it could set a precedent and possibly open the door to future lawsuits against Shell or other multinationals in the Dutch courts.49

3.2.2 OKPABI AND OTHERS

In 2015, the Ogale and Bille communities in the Niger Delta started legal actions in the UK also against both RDS and SPDC, alleging serious environmental damage stemming from oil pollution.50 The communities claim that over several years they have suffered systematic and ongoing oil pollution because of Shell’s operations, and demand RDS compensate their inhabitants and clean up the damage, on the basis that RDS controlled and directed the operations of SPDC.

Shell has contested these claims and, to date, has successfully argued that the case should be dismissed on jurisdictional grounds.51

Shell claimed that its Netherlands and UK-based parent company, RDS, is a separate legal entity from its subsidiary in Nigeria, SPDC.52 Contrary to what the claimants argued, Shell stated that, while RDS owns 100 percent of SPDC and receives profits earned by SPDC, it has no responsibility for SPDC’s actions, and does not intervene in operational matters concerning its subsidiary.53 For these reasons, Shell argued that RDS did not have a duty of care for the people affected by the operations of its Nigerian subsidiary.

The High Court in London agreed, holding that that RDS is merely a holding company which does not exercise any control over the operations of its Nigerian subsidiary and has, therefore, no duty of care towards the communities affected by those operations.54 In February 2018, the Court of Appeal found that the English courts do not have jurisdiction over the claims due to a lack of evidence demonstrating sufficient direction and control of the UK and Netherlands-based parent company over its Nigerian subsidiary SPDC.55

A key issue in the case (and these kinds of cases in general) is that the most likely source of evidence demonstrating the degree to which one company entity relates to another, is the company itself. Therefore, in this instance, such internal information can only come from within Shell itself. It is not something that members of rural Nigerian communities, like Bille and Ogale, are likely to have access to. Yet the Court of Appeal made its ruling and struck out the case without the benefit of disclosure of critical information on the actual structure of Shell and the role its headquarters play in decision making.

But the case is far from over. In July 2019, following an application by the Nigerian claimants, the UK’s Supreme Court announced it would review this decision and is expected to do so in June 2020.56 This comes soon after the Supreme Court heard an appeal in another high-profile human rights case involving a British-domiciled multinational and its overseas operations. Its findings are potentially highly relevant to the Shell case.

This was a case brought by almost 2,000 Zambian villagers against Konkola Copper Mines and its parent company Vedanta Resources Plc, alleging that their land and water had been damaged by toxic waste from the mine.57 As with the Okpabi case, the key preliminary issue was in relation to whether the English courts had jurisdiction to hear the case.58

In April 2019, the Supreme Court found that the Zambian villagers had an arguable case against both parent company and subsidiary. Unlike the Okpabi/Shell case, the court did not consider that the claimants needed to establish that the parent company had operational day-to-day control over its subsidiary. Instead, the Supreme Court focused on the public commitments that the parent company made regarding their subsidiaries and the communities in which they operate. Notably, it ruled that a company might “incur the relevant responsibility to third parties if, in published materials, it holds itself out as exercising that degree of supervision and control of its subsidiaries, even if it does not in fact do so.” In such circumstances, the judges found that it could be the very fact of failing to live up to the public commitment that may present the breach of duty.59

The ruling in the Vedanta case could be very relevant to Shell and other multinational corporations, which deny that their headquarters control subsidiaries. Like Vendanta, Shell makes public statements to its shareholders about how its subsidiaries must operate, and issues policies and standards with which its subsidiaries must comply.60

If the claims are successful in the Supreme Court, RDS could be potentially liable for the oil-related pollution generated by its Nigerian subsidiary and this may result in many more cases being brought by Nigerian communities in the UK.

OGALE’S POISONED WATER

Ogale – one of the two communities represented in the Okpabi case – is home to around 40,000 people, many of whom rely on farming and fishing. Community members report that oil contamination has impacted on their farming productivity, ending all fishing activities and curtailing their access to clean drinking water.61

A study on oil pollution by the UN Environment Programme in 2011 found that residents of Ogale were drinking water from wells contaminated with hydrocarbons. UNEP recorded spills in the area from pipelines operated by Shell as well as the Nigerian state oil company.62

UNEP recommended that the Nigerian government take immediate action.63 Following this, the local government and Shell did begin delivering water by truck to Ogale and then constructed a pipeline in 2013 which brought water to the community. Nevertheless, research by Amnesty International in 2018 found that the water was only supplied sporadically and in inadequate amounts.64 Amnesty found that the residents’ right to water has been violated as they were forced to drink polluted water, or buy water at unaffordable prices, and called on the government and Shell to address this urgently, as well as to ensure a regular supply of safe water to other communities with contaminated wells elsewhere in the Niger Delta region.65

Amnesty also called on Shell to fully clean-up its spills in Ogale. The company claimed to have done so.66 However, a 2015 report by Amnesty International and CEHRD exposed its failure to do so.67

In August 2019, Amnesty International researchers returned to Nigeria to check what steps the government and Shell had taken. The customary ruler of Ogale, King Okpabi expressed his frustration that Shell was still refusing to tackle the pollution:

“Shell spoiled our water and destroyed our livelihoods. It is now spending millions to protect itself and tell the world that it has no responsibilities towards the people of Ogale, rather than addressing the wrong it did to us. Shell, why cannot you repair the mess you have created? Why are you denying our rights?”68

3.2.3 THE BODO COMMUNITY

In 2008, there were two massive oil spills along one of Shell’s most important pipelines, caused by corrosion, in a creek close to the Bodo community. Crude oil continuously leaked into the water for five weeks on each occasion, killing fish and causing major damage to mangrove swamps where the fish bred. People lost their incomes and livelihoods and were exposed to serious health risks.69

Shell accepted liability for the spills in 2011 but continued to dispute the extent of the damage caused and initially offered only about £4,000 of compensation to the community.70 The community decided to bring a claim against SPDC in London, which they did in 2012, requesting both compensation and clean-up.71

In an interim ruling in June 2014, the High Court ruled that Shell could be liable to pay compensation for spills resulting from illegal tampering with its pipelines, if it failed to take reasonable steps to protect, maintain or repair its infrastructure.72

Internal company documents subsequently lodged with the court then showed that Shell had known for years that its pipelines in the Niger Delta were old, poorly maintained and “not fit for purpose.”73

Shell subsequently decided to settle with the Bodo community and, in January 2015, paid the community 70 million US dollars (£55 million pounds) compensation which was distributed directly to 15,000 families.74 This was an unprecedented amount for any Nigerian community.

Separately, Shell agreed to clean up and remediate Bodo’s heavily contaminated waterways under a mediation initiative sponsored by the Dutch government.75 However according to the community, there has been very little progress and contractors were only appointed in July 2019.76 Bodo has accordingly decided to allow one more year for Shell to clean up. If they fail to do so, Bodo will return to the High Court in mid-2020 to enforce their ongoing claim against Shell.

NO CLEAN UP AFTER 11 YEARS

The Bodo community is a settlement in the Ogoniland region of Rivers state, close to Port Harcourt, Nigeria’s oil capital. Bodo has a population of approximately 50,000 people across 35 villages, who have traditionally made their living from farming and fishing.

While Nigeria’s oil deposits have generated billions of dollars in revenues for the country, the majority of people in the Niger Delta are still living in poverty. This poverty has been exacerbated by long-term oil pollution from spills like the ones in Bodo.

Grace Loabel is a 42-year-old mother of three children, and a periwinkle picker (an edible sea snail). In August 2019, she told Amnesty International how the spills continue to affect her family livelihood. Since 2008, Grace is no longer able to harvest periwinkles in the Bodo Creek, whose waters are covered in oil. She said she is now forced to embark on a longer and more expensive journey to other creeks to make ends meet.77

She explained how her husband’s business also changed because of the spills: “My husband used to be a fisherman but stopped because the water is too contaminated. Now he earns a living by giving lifts to people with his motorcycle. When the motorcycle breaks he cannot work. In addition, he needs to pay to get it repaired.”

Grace says that her husband used to earn about five US dollars a day as a fisherman, but now often takes home less than two. The loss of income, Grace explained, had a ripple effect on her entire family, including her children’s education: “Often I do not have money to pay for their school fees and buy their books. For this reason, they do not attend school regularly.”

Beatrice Vimong is a 56-year-old mother of four. She also explained that ever since the two 2008 oil spills, her entire family life has changed: “We were happy, we had food, fish and enough money to solve our little problems. I used to grow cassava, okra, melons, and corn. We used to have very good harvests, eat some of these foods and sell the rest but since the spill whatever we planted would not grow.”78

Pastor Christian Kpandei, a 58-year-old father of four, is one of the community’s most vocal activists. He says he lost everything when the oil spills killed the fish in his ponds. He said the compensation money from Shell helped improve local education and health services, and provide better drinking water, but has not fixed all of Bodo’s problems: “The lack of clean-up has deeply affected us. The soil, the water and the air are all still contaminated.”79

REFERENCE NOTES

44. Dooh and Milieudefensie v Royal Dutch Shell and SPDC; Dooh and Milieudefensie v Shell Petroleum N.V. and the ‘Shell’ Transport and Trading Company Ltd; Oguru, Efanga and Milieudefensie v Royal Dutch Shell and SPDC; Oguru, Efanga and Milieudefensie v Shell Petroleum N.V. and the ‘Shell’ Transport and Trading Company Ltd; Akpan and Milieudefensie v Royal Dutch Shell and SPDC; Akpan and Milieudefensie v Shell Petroleum N.V. and the ‘Shell’ Transport and Trading Company Ltd.

45. Milieudefensie, Timeline, https://en.milieudefensie.nl/shell-in-nigeria/timeline-the-course-of-the-lawsuit

46. Dutch Court of Appeal, Dutch Courts have jurisdiction in case against Shell Nigeria oil spills, 18 December 2018, https://www.
rechtspraak.nl/Organisatie-en-contact/Organisatie/Gerechtshoven/Gerechtshof-Den-Haag/Nieuws/Paginas/Dutch-Courts-have-jurisdiction- in-case-against-Shell-Nigeria-oil-spills.aspx.

47. Milieudefensie, Timeline, https://en.milieudefensie.nl/shell-in-nigeria/timeline-the-course-of-the-lawsuit

48. Court of Appeal of The Hague (Dooh and Milieudefensie v Royal Dutch Shell and SPDC; and Dooh and Milieudefensie v v Shell
Petroleum N.V. and the ‘Shell’ Transport and Trading Company Ltd), ECLI:NL:GHDHA:2015:3586, 18 December 2015, https://uitspraken. rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2015:3586 (includes English translation)

49. Milieudefensie, Milieudefensie’s lawsuit against Shell in Nigeria, https://en.milieudefensie.nl/shell-in-nigeria/milieudefensie-lawsuit- against-shell-nigeria.

50. Okpabi and others v Royal Dutch Shell Plc and another. Leigh Day, Two new legal actions launched against Shell over Nigerian oil pollution, March 2016, https://www.leighday.co.uk/News/News-2016/March-2016/Two-new-international-legal-actions-launched-again.

51. High Court Judgement, Okpabi and others v Royal Dutch Shell Plc and another, 26 January 2017.

52. Witness Statement of Osagie Okunbor, managing Director of SPDC, Okpabi and others v. Royal Dutch Shell Plc and another, 26 June 2016. On file with Amnesty International.

53. Witness Statement of Osagie Okunbor, managing Director of SPDC, Okpabi and others v. Royal Dutch Shell Plc and another, 26 June 2016. On file with Amnesty International.

54. Okpabi and others v Royal Dutch Shell Plc and another [2017] EWHC 89 (TCC) (26 January 2017), http://www.bailii.org/ew/cases/ EWHC/TCC/2017/89.html. See also Amnesty International, UK: Shell ruling gives green light for corporations to profit from abuses overseas, 26 January 2017, https://www.amnesty.org/en/latest/news/2017/01/uk-shell-ruling-gives-green-light-for-corporations-to-profit-from-abuses- overseas/

55. Okpabi and others v Royal Dutch Shell Plc and another [2018] EWCA Civ 191 (14 February 2018), http://www.bailii.org/ew/cases/ EWCA/Civ/2018/191.html.

56. UK Supreme Court Order, 2 September 2019. Leigh Day, Supreme Court grants permission to appeal to Nigerian Communities in their fight against Shell, 24 July 2019, https://www.leighday.co.uk/News/2019/July-2019/Supreme-Court-grants-permission-to-appeal-to-Niger. Amnesty International made a submission in this case saying there are strong reasons for the Supreme Court to accept the application for permission to appeal. Amnesty International, Rule 15 submission, 26 April 2018, https://www.amnesty.org/download/Documents/ AFR4483212018ENGLISH.PDF.

57. Lugowe and others v Vedanta Resources PLC.

58. Leigh Day, Zambia – Vedanta – Konkola Copper Mines, https://www.leighday.co.uk/International/Corporate-accountability/Environmental-damage/Zambia

59. Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents), [2019] UKSC 20, https://www.supremecourt. uk/cases/docs/uksc-2017-0185-judgment.pdf.

60. Shell,BusinessIntegrity,https://www.shell.com/sustainability/our-approach/commitments-policies-and-standards/business-integrity.html

61. Leigh Day, Supreme Court grants permission to appeal to Nigerian Communities in their fight against Shell, https://www.leighday.co.uk/ News/2019/July-2019/Supreme-Court-grants-permission-to-appeal-to-Niger

62. United Nations Environment Programme, Factsheets, Nsisioken- Agbi (001-005), Ebubu/Ejama/Agbeta (001-004), Ogale (004-004), Okuluebu- Ogale (005-002), Okuluebu- Ogale (005-001), 2011, https://www.unenvironment.org/resources/assessment/environmental- assessment-ogoniland-site-factsheets-executive-summary-and-full

63. UNEP, Environmental Assessment, p 215.

64. Amnesty International, Nigeria: community in Nigeria drinking polluted water, 27 September 2018, https://www.amnesty.org/en/documents/afr44/9172/2018/en/

65. Amnesty International interviewed 47 residents of Ogale on 1 September 2018.

66. Shell Nigeria, The UNEP Environmental Assessment of Ogoniland, https://www.shell.com.ng/sustainability/environment/unep-environmental-assessmen-of-ogoniland.html.

67. Amnesty International and CEHRD, Clean it up.

68. Amnesty International interview with King Okpabi, Port Harcourt, 12 August 2019.

69. Amnesty International, The True Tragedy.

70. Leigh Day, Shell agrees £55m compensation deal for Niger Delta community, https://www.leighday.co.uk/News/2015/January-2015/Shell-agrees-55m-compensation-deal-for-Nigeria-Del. See also The Bodo Community and others v The Shell Development Company of Nigeria [2014] EWHC 1973 (TCC), https://www.bailii.org/ew/cases/EWHC/TCC/2014/1973.html.

71. The Bodo Community and others v The Shell Petroleum Development Company of Nigeria Ltd, Particulars of Claim, 23 March 2012. See also, Leigh Day, Bodo Community v Shell Claim, https://www.leighday.co.uk/International/Further-insights/Detailed-case-studies/The- Bodo-community-shell-claim.

72. The Bodo Community and others v The Shell Development Company of Nigeria [2014] EWHC 1973 (TCC) (20 June 2014), http://www. bailii.org/ew/cases/EWHC/TCC/2014/1973.html.

73. Amnesty International, Court documents expose Shell’s false claims on Nigeria oil spills, 13 November 2014, www.amnesty.org/en/ latest/news/2014/11/court-documents-expose-shell-s-false-claims-nigeria-oil-spills

74. Joe Westby, The Nigerian Community that took on Shell and won, Amnesty International https://www.amnesty.org/en/latest/ campaigns/2015/04/nigeria-shell-oil-compensation/

75. Government of the Netherlands, Dutch mediation in Niger Delta proves successful, 2 May 2015, https://www.government.nl/latest/ news/2015/05/02/dutch-mediation-in-niger-delta-proves-successful.

76. Email to Amnesty International from Leigh Day, the law firm representing Bodo, 25 September 2019.

77. Amnesty International interview with Grace Loabel, Port Harcourt, 10 August 2019.

78. Amnesty International interview with Beatrice Vimong, Port Harcourt, 10 August 2019.

79. Amnesty International interview with Pastor Christian Kpandei, Port Harcourt, 10 August 2019.

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