The High Court will begin to hear arguments during a 4-day hearing starting on 21st November 2016 on whether the English Courts can hear two legal claims on behalf of over 40,000 Nigerians against Royal Dutch Shell (RDS) and its Nigerian subsidiary, Shell Petroleum Development Company of Nigeria Ltd (SPDC), for extensive environmental damage caused by oil pollution to two separate communities in the Niger Delta.
The first claim is being brought on behalf of 2,335 individuals from the Bille Kingdom of Nigeria who are mostly fishermen who claim their environment has been devastated by oil spills over the past five years.
The second claim is brought on behalf of the Ogale Community in Ogoniland which consists of roughly 40,000 people. The community has been subjected to repeated oil spills from Shell’s pipelines over a number of years which have still not been cleaned up.
The appalling levels of pollution the Ogale community was carefully documented by the United Nations Environment Programme in their 2011 report.
In March 2016 the Technology and Construction Court. agreed that the two legal cases could proceed to the next stage through the London High Court, where the parent company, Royal Dutch Shell plc, is based.
Lawyers for the Nigerians communities argue that Royal Dutch Shell, who has its headquarters in the UK, controls and directs its’ Nigerian subsidiary and should ensure that its operations do not systematically pollute the environment.
Both Royal Dutch Shell and Shell Nigeria argue that the cases should be heard in Nigeria and not in the English Courts.
The two separate legal actions are being brought by law firm Leigh Day who represented the Bodo Community against Shell in an unprecedented environmental claim resulting in Shell agreeing to pay compensation package of £55m to the Community and 15,600 Nigerian fishermen whose livelihoods had been destroyed by Shell’s oil pollution. However, hundreds of Niger Delta communities remain blighted by oil pollution.
Daniel Leader, partner in the International Group Claims team at Leigh Day said: “Oil spills from Shell’s oil pipelines have blighted the lives of the thousands of Nigerians who live in Ogale and Bille. It is scandalous that five years after the UNEP Report Shell is yet to clean up its own oil in either Ogale or Bille.
“It is clear to the Claimants that Royal Dutch Shell is ultimately responsible for failing to ensure that its’ Nigerian subsidiary operates without causing environmental devastation. It is time for Shell to clean up their act in Nigeria. At the moment these communities have no choice – they have to take them to court to get them to act.”
Ogale Community and the UNEP Report
Ogale is located in the Nchia administrative region of Eleme LGA, Rivers State in Nigeria and has an estimated population of over 40,000. The people of Ogale have traditionally been either crop farmers and fishermen who rely on Ogale’s tributaries and waterways as fishing areas.
However, Ogale has been subjected to repeated oil spillages across much of the community since at least 1989. At one spill site at Okuluebu, it is estimated that there were 87,500 barrels of oil remaining at the site when the United Nations Environment Programme (UNEP) conducted investigations in 2010.
The Ogale Pipelines and Infrastructure are several decades old and in a poor state of repair making the area vulnerable to oil spills which have caused, and continue to cause, long-term contamination of the land, swamps, groundwater and waterways in the Community.
In 2011 the United Nations Environmental Programme (UNEP) published an Environmental Assessment of Ogoniland which included extensive testing of the Ogale Community. The UNEP Report found that Oil spills in Ogoniland happen “with alarming regularity” and that “it is a fair assumption that most members of the current Ogoniland community have lived with chronic oil pollution throughout their lives”.
UNEP’s testing of Ogale reported serious contamination of agricultural land and waterways in the community as well as its groundwater, exposing Ogale’s inhabitants to potential health risks. Groundwater oil contamination in Ogale was found to be 1,000 times higher than levels permitted under Nigerian law and water in the community was found to be unfit for human consumption.
UNEP’s recommendations included:
- Emergency measures to provide adequate sources of drinking water to impacted households;
- Immediate steps to prevent existing contaminated sites from causing further pollution and;
- A substantial programme of clean up and decontamination of impacted sites.
At the time, Shell stated it accepted the findings and the recommendations of the UNEP Report. However, five years later, Shell has failed to comply with the recommendations of the UNEP Report and to clean up the sites polluted by their own oil.
The Ogale Community continues to live with chronic levels of land and water pollution. In November 2015, Amnesty International published a report entitled ‘Clean It Up’, following field research in Ogale and other communities.
It concludes that Shell has failed to clean up damage caused by oil spills in Ogale in line with the recommendations of the UNEP report.
Amnesty also found that Shell had also failed to clean up three other sites which were the subject of the UNEP report. The Community reports that the oil contamination continues to impact on their farming and fishing has all but ended in the community.
Residents report that while a drinking water system has been installed by the Government, the provision of water is patchy and it does not extend to all polluted areas, despite the UNEP report identifying the lack of clean drinking water in Ogale as being an urgent problem.
Despite repeated requests from the leaders of Ogale, Shell has refused to meet with them to try agree a clean-up and compensation programme. The Community are now claiming for compensation and seeking to get Shell to clean up the damage caused by their oil.
HRH Emere Godwin Bebe Okpabi, the Paramount Ruler of Ogale, said: “Shell have polluted our land and our streams and drinking wells for years. Even when the UNEP report suggested that something urgent should be done, Shell did not even come to see our community or to talk to us. No-one is listening to us, no-one cares. We hope at last this case will force Shell clean up at long last.”
Bille is located in the Degema Local Government Area (LGA) in River State, Nigeria. Populated by nearly 13,000 residents, it is comprised of a number of island towns and fishing settlements that are surrounded entirely by water.
Residents of Bille have traditionally relied on fishing to sustain their way of life, however, following the devastation caused by the spills emanating from an oil pipeline known as the Nembe Creek 30” Trunkline (NCTL) their livelihood has been destroyed.
Due to the proximity of buildings to the waterfront, most properties on Bille have been damaged by the pollution and residents have even been forced to stack sandbags outside their homes to try to prevent oil entering their properties.
The NCTL stretches for almost 100 kilometres and was built in 1981 and although money was recently spent to replace it, Shell failed to install leak detection systems to prevent and detect operational spills and/or protect against third party interference, known as bunkering, in breach of Nigerian legal standards.
According to the legal action, the creeks, mangroves and island communities in Bille have been devastated by oil emanating from the NCTL since the replacement of the Bille Section of the pipeline in 2010. It is alleged that 13,200 hectares of mangrove have been damaged by oil spilled from the Bille Pipelines and Infrastructure, the largest loss of mangrove habitat in the history of oil spills.
The key issue in the claim will be whether Shell can be liable for failing to protect their pipelines from damage caused by third parties. In the judgment handed down in the Bodo litigation, the Court ruled that where it can be shown that Shell neglected to protect their pipelines properly, they could be liable for the damage arising from their neglect.