***With thanks to the authors for authorising a revised reprint.
Background
Niger Delta States of Nigeria: Copyright Stratfor 2012
Thirteen years ago, four Nigerian farmers and fisherfolk from villages in the Niger-Delta region of the Federal Republic of Nigeria (Nigeria) instituted three concurrent lawsuits against Shell Petroleum Development Company of Nigeria (Shell Nigeria), a subsidiary of Royal Dutch Shell (Shell) in the courts of the Netherlands, to hold them liable for oil spills across villages in the Niger Delta. The Niger Delta is a region comprising nine coastal states in the southern parts of Nigeria: Abia, Akwa-Ibom, Bayelsa, Cross-River, Delta, Edo, Imo, Ondo and Rivers.
Overview of the Cases
The first suit (cases a and b) was instituted by Chief Fidelis Oguru and Mr Alali Efanga (plaintiffs/appellants) from Oruma village in Bayelsa State. The second suit (cases c and d) was instituted by Chief Barizaa Dooh (plaintiffs/appellant) from Goi village in Rivers State. The third suit (cases e and f) was instituted by Elder Friday Alfred Akpan (plaintiffs/appellant) from Ikot Ada Udo village in Akwa Ibom State. Sadly, Chief Barizaa Dooh and Mr Alali Efanga passed away in 2012 and 2016 respectively. Hence, Chief Eric Barizaa Dooh replaced his father in the suit.
All suits were initiated with the support of Milleudefensie (Friends of the Earth Netherlands), an environmental organisation. The plaintiffs who depend on farming and fishing for their livelihoods made three demands:
First: For Shell to stop and prevent future oil spills from its pipelines.
Second: For Shell to clean up the wide-spread environmental pollution resulting from the oil spills.
Third: For Shell to take responsibility for the actions of its subsidiary in Nigeria and pay damages as appropriate.
In response, Shell disclaimed liability for the actions of Shell Nigeria, arguing that the oil spills in Oruma and Goi between 2004 and 2005 had been caused by third party sabotage. Nevertheless, upon its failure to prove the sabotage beyond reasonable doubt, the Hague Court of Appeal held Shell liable for the spills in Oruma and Goi on 29 January 2021, 13 years after the suit commenced. Conversely, the Court decided that the oil spills in Ikot Ada Udo – the third suit – was the outcome of sabotage but stated that it required additional time to decide further 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.” Thus, after a damage assessment procedure, the Court will determine and disclose the damages to be paid to the successful plaintiffs in the first two law suits or their next of kin, as appropriate. In the meantime, the Court ordered Shell and Shell Nigeria to install adequate leak detection systems in its pipelines at Oruma.
Legal Implications:
While these three lawsuits form part of the rich tapestry of lawsuits instituted against multinational companies and their subsidiaries within and outside Nigeria for oil spills in the Niger Delta, the central finding of the court is both unique and ground-breaking in its implications for the “duty of care” owed by parent companies. Put differently, it possibly opens the gates for parties to 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 attempted other ingenious efforts to hold Shell responsible for oil spills and/or environmental pollution 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 of the Niger Delta in the United Kingdom in 2015. 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. An appeal has since gone to the Supreme Court, which heard the case on 23rd June 2020, but is yet to deliver its judgement.
Environmental and Human Impact:
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 pecuniary award could indemnify the plaintiffs and their communities for the irreparable, intergenerational loss of dignity, lives, and livelihoods, or the obliteration of biodiversity, flora, fauna and piscifauna. Indeed, the documented accounts of the four plaintiffs are poignant reminders of the continuing challenges confronted by the over 30 million victims of environmental injustice in the resource-rich Niger Delta. We turn to these below.
“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.”
“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.”
“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.”
“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.”
Responding to the judgements, Mr Nnimmo Bassey (MFR), an eminent environmental justice advocate and Director, Health of Mother Earth Foundation (HOMEF), graphically asserts the following statement in private communications with the authors:
Effect of oil spills on farmland. Copyright: Authors
“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.”
Conclusion
To be sure, oil spills, environmental degradation and environmental justice in the Niger Delta are complex and multifaceted issues 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 fragile environmental ecosystems of the Niger-Delta.
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.
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.
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.
