Progress in prosecuting liability of oil and mining companies: Nigeria

December 20, 2015

Catholic priest Father Edward Obi helps investigate the situation in Nigeria

A Dutch appeals court ruled on Friday that Royal Dutch Shell can be held liable foroil spills at its subsidiary in Nigeria, potentially opening the way for other compensation claims against the multinational.

Judges in The Hague ordered Shell to make available to the court documents that might shed light on the cause of the oil spills and whether leading managers were aware of them.

Friday’s ruling overturned a 2013 finding by a lower Dutch court that Shell’s Dutch-based parent company could not be held liable for spills at its Nigerian subsidiary.

The legal dispute dates back to 2008, when four Nigerian farmers and the campaign group Friends of the Earth filed a suit against the oil company in the Netherlands, where its global headquarters is based.

“Shell can be taken to court in the Netherlands for the effects of the oil spills,” the court ruling stated on Friday. “Shell is also ordered to provide access to documents that could shed more light on the cause of the leaks.”

The case will continue to be heard in March 2016.

Judge Hans van der Klooster said the court had found that it “has jurisdiction in the case against Shell and its subsidiary in Nigeria”.

Shell’s Nigerian subsidiary, Shell Petroleum Development Company of Nigeria Ltd (SPDC), said in a statement: “We are disappointed the Dutch court has determined it should assume international jurisdiction over SPDC.”

“We believe allegations concerning Nigerian plaintiffs in dispute with a Nigerian company, over issues which took place within Nigeria, should be heard in Nigeria,” it said.

Shell has always blamed sabotage for the leaks, which under Nigerian law would mean it is not liable to pay compensation. But the Dutch court said on Friday: “It is too early to assume that the leaks were caused by sabotage.”

The farmer appealed over whether the parent company should also be liable.

Friends of the Earth Netherlands director Geert Ritsema said Friday’s ruling meant the three other farmers could proceed with claims for compensation for income lost due to the spills.

“There are 6,000km of Shell pipelines and thousands of people living along them in the Niger Delta,” he said. “Other people in Nigeria can bring cases and that could be tens of billions of euros in damages.”

In a separate case, Shell agreed in January to pay out £55m ($82 million) in out-of-court compensation for two oil spills in Nigeria in 2008, after agreeing a settlement with the affected community in the Delta.

Amnesty International and the Nigeria-based Center for Environment, Human Rights, and Development report that the ongoing contamination is the result of a cover-up by Shell—the biggest international oil company operating in Nigeria, running over 50 oil fields and 3,000 miles of pipelines, many of them leaking.

But the report also criticizes the Nigerian government for failing to adequately regulate a company that has already admitted to nearly 2,000 oil spills over the last eight years, in what is likely a dramatic under-count.

“By inadequately cleaning up the pollution from its pipelines and wells, Shell is leaving thousands of women, men and children exposed to contaminated land, water and air, in some cases for years or even decades,” said Mark Dummett, business and human rights researcher for Amnesty International.

The United Nations Environmental Program (UNEP) in 2011 castigated the company for its extensive oil pollution in the Ogoniland region, including contamination of farmland and drinking water, posing a threat to human health. The report followed decades of organizing led by the Indigenous Ogoni people and other ethnic minorities in the Niger Delta. Shell pledged in 2011 to clean up the sites, and since then, has publicly claimed to have addressed the pollution.

But field researchers uncovered a different story.

Nearly half a century after a Shell spill and fire ravaged a Boobanabe well, researchers saw “water-logged areas with an oily sheen, and soil was black and encrusted with oil,” the report states. Yet Shell claimed in 1975 and 2012 that it had cleaned up the location.

Similarly, “soil soaked with crude oil” was still visible at the Bomu Manifold site, where a large Shell oil spill occurred in 2009. Shell claimed to have cleaned up the area in 2012.

Yet, false reporting can also be attributed to government regulators, who claimed that two other sites—the Barabeedom swamp and Okuluebu—were cleaned even though they were still visibly contaminated with oil.

“Our creeks are no more. Fishing activity is no more productive,” said Emadee Roberts Kpai, who is now over 80 years old and worked as a farmer and fisher until Shell’s spill at Bomu Manifold in 2009. “The farm I should be farming has already been devastated by oil spills from Shell. Our crops are no longer productive. No fish in the water. We plant the crops, they grow but the harvest is poor.”

“When Shell came to our community, they promised that if they find oil they’ll transform our community, and everybody will be happy,” Kpai told researchers. “Instead we got nothing from it.”

Shell sought to deflect responsibility for the spills, telling Amnesty International that a majority of pollution is caused by theft from the pipelines. However, Amnesty notes that, even if this were true, Nigerian law requires companies to clean up spills from their infrastructure, regardless of the cause.

The joint report is not the first time Shell’s lies have been exposed. The Movement for the Survival of the Ogoni People (MOSOP) has repeatedly sounded the alarm over ongoing contamination.

The group’s president Legborsi Saro Pyagbara declared earlier this year: “Although the Federal Government of Nigeria has promised resolving the environmental challenges of the Ogoni people through genuine and comprehensive implementation of the UNEP report on Ogoniland, to enliven efforts at enhancing our survival, it must match the promise with action for us to take the administration seriously.”

The report’s release coincides with the 20th anniversary of the execution of the “Ogoni 9,” a group of activists who were hanged following a military tribunal in which they were denied due process. Ken Saro-Wiwa, a writer, activist, and leader of MOSOP was among those killed. For years, Shell colluded with the Nigerian military and police to suppress Ogoni protests against the company’s environmental destruction.

Earlier this year, Shell agreed to an $87 million settlement with residents of the Bodo fishing village in Ogoniland, which suffered two massive spills more than six years ago. The payment, however, was criticized by the Health of Mother Earth Foundation as “inadequate for the severity of damage done.”

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Shell Oil enlisted the help of the country’s brutal former military government to deal with protesters.  The documents, seen by the IoS, support allegations that Shell helped to provide Nigerian police and
military with logistical support, and aided security sweeps of the oil-rich Niger Delta.  As local people requested clean up and participation in the proceeds from the extraction economy,  the Ogoni suffered a brutal backlash that left an estimated 2,000 dead and 30,000 homeless. The documents claim there was systematic collusion with the military and Mobile Police Force (MPF), known as the “Kill and Go”.

In one document written in May 1993, the oil company wrote to the local governor asking for the “usual
assistance” as the Ogoni expanded their campaign. There was a stand-off between the Ogoni and the US contractor Willbros, which was laying a pipeline. Nigerian military were called in, resulting in at least one death.

Days later, Shell met the director general of the state security services to “reiterate our request for support from the army and police”. In a confidential note Shell suggested: “We will have to encourage follow-through into real action preferably on an industry rather than just Shell basis”. The Nigerian regime responded by sending in the Internal Security Task Force, a military unit led by Colonel Paul Okuntimo, a brutal soldier, widely condemned by human rights groups, whose men allegedly raped pregnant women and girls and who tortured at will. Okuntimo boasted of knowing more than 200 ways to kill a person.

In October 1993, Okuntimo was sent into Ogoni with Shell personnel to inspect equipment. The stand-off that followed left at least one Ogoni protester dead. A hand-written Shell note talked of “entertaining 26 armed forces personnel for lunch” and preparing “normal special duty allowances” for the soldiers. Shell is also accused of involvement with the MPF, which worked with Okuntimo. One witness, Eebu Jackson Nwiyon, claimed they were paid and fed by Shell. Nwiyon also recalls being told by Okuntimo to “leave nobody untouched”. When asked what was meant by this, Nwiyon replied: “He meant shoot, kill.”

One former Shell employee, Kloppenburg Ruud, head of group security in the mid-1990s told lawyers that the deployment of Nigerian security forces at two Shell jetties in the delta was at the company’s request.

Confidential internal documents reveal how the oil giant lobbied The Guardian newspaper to reduce its support for Saro-Wiwa.  In an assessment of the political and security situation, a Shell executive noted: “The Guardian newspaper ran a much more balanced article on the Ogoni issue, with their position moving from apparent support for Saro-Wiwa to the middle ground. There is a slight possibility that this may have been influenced by the meeting we had with The Guardian‘s editor the week before.”

20 years after the martrdom of Ken Saro-Wiwa, his legacy lives on

Ken Saro-Wiwa belonged to that rare but wonderful category of poet-writer turned non-violent resistance leader. And like too many non-violent resistance leaders, he was executed by the people whose interests he challenged. November 10th is the twentieth anniversary of his execution in his motherland, Nigeria.

Known on the international stage for his David-and-Goliath struggle with oil giant Shell, Ken Saro-Wiwa remains a figure lionized by activists all over the world, who see his example as a great victory for people power over formidable transnational corporate giants. His legacy also moves and inspires a growing movement of civil society activists who are lobbying the UN and national governments to create a binding treaty to regulate the conduct of transnational corporations with respect to human rights.

Activism, oil and the Ogoni

Ogoniland, in the Niger Delta, has suffered pollution and environmental degradation since multinational oil companies began extracting oil in the 1950s. Ken Saro-Wiwa, in a leading role with the Movement for the Survival of the Ogoni People (MOSOP), was instrumental in a nonviolent campaign demanding fair play for the Ogoni People and an end to the environmental destruction of the Niger Delta by the oil companies, notably Shell.

“Far beyond Nigeria, Ken Saro-Wiwa’s struggles has served to illustrate the need for a radical improvement of the architecture of international justice.”

His opposition to the oil companies’ operations extended to the Nigerian government who were complicit in the destruction by their categorical failure to enforce environmental regulations. Ultimately, the government cooked up fraudulent charges against Saro-Wiwa, implicating him in the horrific murder of the Gokana Ogoni chiefs. He was hanged in 1995, prompting widespread international condemnation of the Nigerian government.

His work with local activists saw Shell routed from Ogoniland. He made hundreds of thousands of Ogonis feel empowered to stand up against the economic and political interests that had pushed them to the sidelines for much too long and wrecked the Niger Delta’s biodiversity.

At the height of his campaigning around 400,000 people participated in a mass demonstration signaling their total opposition to Shell’s operations in their territory, and demanding the oil giant leave immediately. This ability to mobilize people caused panic among the authorities and oil companies – not only Shell – who understood the very real challenge to their power and impunity. The Nigerian government’s brutal response (pdf) saw 27 villages razed, some 2,000 people killed and at least 80,000 displaced.

ken-saro-wiwa-in-1993-001.jpgKen Saro-Wiwa in 1993. (Photo: Greenpeace)

Visibility for the Ogoni people and the environment

Drilling for oil in Ogoniland has completely stopped for the past twenty years, which is a clear victory for Ken Saro-Wiwa and the movement. The Ogoni Bill of Rights (pdf), which Saro-Wiwa submitted to the national government in 1990, remains a powerful cornerstone of Ogoni advocacy and autonomy. The Bill of Rights calls for political autonomy to participate in the affairs of the Republic as a distinct and separate unit, the right to control and use a fair proportion of Ogoni economic resources for Ogoni development, and the right to protect the Ogoni environment and ecology from further degradation.

The work of Ken Saro-Wiwa and his comrades has inspired activists and the disenfranchised across the world, by demonstrating that it is possible to stand up to overwhelming power.

Ogoniland areas still unsafe for human habitation

In 2011, the United Nations Environment Programme (UNEP) released a damning reportstating that vast areas of Ogoniland are unsafe for human habitation due to oil pollution. The report found that, in over 40 locations tested, the soil is polluted to a depth of 5 metres. Ogoniland’s water bodies are all polluted. The levels of benzene in approximately 90 of the locations is more than 900 times above accepted World Health Organisation standards. This dangerously contaminated water is the source of drinking water for local communities. The UNEP report recommended that US$1 billion should be allocated to set up an environmental restoration fund and begin the clean up. In the four years since the report was published Shell and the Nigerian government have failed to implement its recommendations.

However, the resilience of the Ogonis and persistent pressure by  local and international civil society brought the current government of President Buhari to commit to the implementation of the UNEP report. With an initial pledge of US$10 million there are high expectations that the proposed governing body to oversee the clean up will be inaugurated soon.

Grassroots activism meets international justice – Ken Saro-Wiwa’s unexpected legacy

Ken Saro-Wiwa was a grassroots activist and he has continued to inspire activists even after his death. Friends of the Earth Nigeria (Environmental Rights Action), for instance, has continued to support local communities in their call to “leave the oil in the soil,”demanding that the Nigerian government open no new oil fields. But the shocking abomination of multinational abuses in the Niger Delta Saro-Wiwa helped to highlight, has spurred  international cries for access to justice for people affected by corporate crimes. Friends of the Earth Nigeria has been involved in numerous campaigns and lawsuits to hold corporations accountable, including the 2005 landmark ruling by a Nigerian High Court that gas flaring is unconstitutional and damages people and the environment.

“Ken Saro-Wiwa did not die in vain.”

Human rights advocates have brought a series of cases to hold Shell accountable for alleged human rights violations in Nigeria, such as summary execution, crimes against humanity, torture, inhumane treatment, arbitrary arrest, detention and a host of other crimes. The lawsuits, brought against Royal Dutch Shell and its Nigerian operation have been fought in Dutch, US and British courts. Some of these cases have broken new ground in international law, with transnational corporations facing consequences in their host countries for abuses committed abroad. The Bodo community filed a case in in London to sue Shell for damages to their community. Shell admitted liability in 2011. A case brought by four Nigerian farmers and Friends of the Earth Netherlands and Nigeria is ongoing.

But far beyond Nigeria, Ken Saro-Wiwa’s struggles has served to illustrate the need for a radical improvement of the architecture of international justice. Friends of the Earth International is working with a host of other organizations, lobbying the UN human rights council to create a binding international treaty for transnational corporations and human rights. The treaty  would provide access to justice and remedy for people who suffer human rights abuses by transnational corporations and make them ever aware of their responsibilities.

Ken Saro-Wiwa did not die in vain. Ultimately his international legacy serves as a beacon of hope to marginalized peoples across the world and a source of inspiration to people in Nigeria.

Godwin Ojo is the executive director of Friends of the Earth Nigeria / Environmental Rights Action.