The court’s verdict on the Bille Ogale versus Shell, latest legal bid by an Ogoni community to have its damages claim over pollution dealt with by the English courts, was expectedly greeted with bickering. ADEOLA YUSUF looks at the implications for Nigeria
February 14, 2018, a day used in celebrating love by many across the world, was chosen by judges at the United Kingdom (UK’s) Court of Appeal to deliver judgment on the Bille Ogale versus Royal Dutch Shell (RDS) case. Expectedly, the judgment turned out to be one that is still talked about many days after it was delivered several kilometers away from Nigeria’s shores.
While both parties have come up with reactions, the case turned out to be a defining moment in the anals of oil spills in Nigeria – it, again, brought oil spills and efforts to fight the scourge in Nigeria back to the fore. To Shell, the Niger Delta is still being rattled by high scale crude oil theft, pipeline sabotage and illegal refining.
The company’s subsidiary in Nigeria, Shell Petroleum Development Company (SPDC) – jointly owned by NNPC, which said this in an official reaction to the judgment of the English Court of Appeal that dismissed an appeal by counsel to the Bille Ogale community in the Ogoni area of Niger Delta, maintained that crude theft, pipeline sabotage and illegal refining remained the main sources of pollution across the Niger Delta.
Last year, a judge in London made a ruling, which meant that any compensation by two Nigerian communities affected by oil spills would have to be heard in Nigeria. The communities later went to the Court of Appeal to challenge the decision of Mr. Justice Fraser. On February 14, judges in London dismissed their appeal by a majority of two to one. One action has been brought on behalf of the Ogale Community in Ogoniland, which consists of around 40,000 people.
The other relates to more than 2,000 individuals from the Bille Kingdom of Nigeria, who are mostly fishermen. They believe they can only get “justice” in the UK over what their lawyers have described as “extensive environmental damage caused by oil pollution.”
In May 2015, UK solicitors, Leigh Day, brought oil spill claims against SPDC on behalf of the Ogale and Bille communities in Rivers State. The communities sued Royal Dutch Shell (RDS) as an “anchor defendant” to bring the claims in England. RDS and SPDC contested the jurisdiction of the English court over these claims and, in a judgment handed down on January 26, 2017, the court dismissed the claims against both RDS and SPDC in England.
The judge rejected Leigh Day’s claim that RDS owed a duty of care to the Nigerian claimants allegedly impacted by SPDC, and consequently there is no anchor defendant for the case against SPDC to be brought in England. Leigh Day appealed the decision and the appeal hearing took place November 21-23, 2017. On February 14, 2018, the Court of Appeal handed down its judgment, dismissing the appeal.
“Bille and Ogale are areas heavily impacted by crude oil theft, pipeline sabotage, and illegal re fining, which remain the main sources of pollution across the Niger Delta. Ogale is in Ogoni land, where SPDC has produced no oil or gas since 1993, as access to the area has been limited following a rise in violence, threats to staff and attacks on facilities,” SPDC said.
From Shells’ lens
In the first official reaction to the ruling, General Manager, External Relations for The SPDC Nigeria Limited, Igo Weli, told New Telegraph that Nigeria had a well-developed justice system that is capable of dealing with these claims.
“The Court of Appeal has rightly upheld the earlier decision that this case should not proceed in the English courts. Nigeria has a well-developed justice system that is capable of dealing with these claims,” he said.
Both Bille and Ogale are, according to Weli, “areas heavily impacted by crude oil theft, pipeline sabotage and illegal refining, which remain the main sources of pollution across the Niger Delta.
Litigation in courts unfamiliar with the law and realities on the ground ultimately does nothing to address the issue of criminal interference in the operations of Nigerian company.” He added: “SPDC works with a range of stakeholders, supporting the industry’s search for solutions to these complex issues.”
The community’s view
The oil giant defeated the latest legal bid by the community to have its damages claim over pollution dealt with by the English courts. However, the traditional ruler of Ogale Community, King Okpabi, said: “We have lost our environment, our farmland and our dignity because of Shell’s operations in our community.
The English courts are our only hope because we cannot get justice in Nigeria. So let this be a landmark case, we will go all the way to the Supreme Court. I will not run away from my responsibility to defend the people of Ogale against one of the largest corporations of the world, which treats us with contempt.”
A partner at Leigh Day, solicitor to the community, Daniel Leader, said: “This is a surprising judgment, which leaves these two communities in a desperate position and permits Shell to continue to operate with impunity in Nigeria. “It sends the wrong message to multinational corporations around the world.
The Dutch Court of Appeal reached the opposite view on precisely the same point. We are hopeful that the Supreme Court will grant permission to appeal and will come to a different view.”
ABC of the UK Court case
In May 2015, UK solicitors, Leigh Day, brought oil spill claims against the SPDC on behalf of the Ogale and Bille communities in Rivers State. The communities sued Royal Dutch Shell (RDS) as an “anchor defendant” to bring the claims in England.
RDS and SPDC contested the jurisdiction of the English court over these claims and, in a judgment handed down on January 26, 2017, the court dismissed the claims against both RDS and SPDC in England. The judge rejected Leigh Day’s claim that RDS owed a duty of care to the Nigerian claimants allegedly impacted by SPDC, and consequently there is no anchor defendant for the case against SPDC to be brought in England.
Leigh Day appealed the decision and the appeal hearing took place November 21-23, 2017. On February 14, 2018, the Court of Appeal handed down its judgment, dismissing the appeal.
Bille Ogale vs Bodo
There has been an attempt to draw parallels between the Bille Ogale suit and the settlement of a similar case between SPDC and Bodo.
Two oil spills took place in 2008 on the Bomu-Bonny Pipeline in Bodo. Both spills were caused by operational failure of the pipelines, and SPDC accepted responsibility as soon as the independent Joint Investigation Team determined the cause. They were deeply regrettable operational accidents, and they absolutely should not have happened.
As in all cases of operational spills, SPDC also acknowledged responsibility to pay appropriate compensation as required by the provisions of the Nigerian Oil Pipelines Act.
In addition to the payment of compensation, clean-up of the 2008 operational spills at Bodo restarted in September 2017, with the re-mobilisation of the two international contractors utilising the 400 youths trained for the exercise.
We are delighted that, after years of significant engagement with the communities and other stakeholders managed by the Bodo Mediation Initiative (BMI), the clean-up and remediation activities can now proceed in line with the Bodo clean-up Memorandum of Understanding, which was agreed in 2015.
In Bille Ogale, Leigh Day did not disclose the identity of their clients and also did not provide any details as to which individual spills are alleged to have caused the environmental degradation or impacted their clients. SPDC believes that if the Bille community has been adversely affected by oil spills, they should be able to point to particular oil spills, which have affected them at particular points in time.
No documents have been provided in support of the community’s claim for loss and damage, nor has SPDC received any indication as to the potential value of these claims.
“SPDC takes very seriously its legal obligations to clean up and remediate oil spills from SPDC JV-operated infrastructure and has consistently demonstrated compliance with its legal obligations, where access to spill sites is granted.
SPDC will always take responsibility for spills caused by operational error and will pay compensation to impacted communities as stipulated by Nigerian law; however, it’s important to note that while SPDC will clean up and remediate areas impacted by spills from its facilities regardless of cause, it is not liable to pay compensation for damage caused by oil thieves and illegal third party activities.
“Sadly, criminal activity of this kind is all too prevalent in places like Bille and Ogale.
This criminality is the real tragedy of the Niger Delta, which litigation against SPDC, particularly in foreign courts, does nothing to address,” the company said.
SPDC’s action on crude theft
SPDC, according to Weli, continues to undertake initiatives to prevent and minimise spills caused by theft and sabotage of its facilities in the Niger Delta.
“In 2016, we sustained on-ground surveillance efforts on SPDC JV’s areas of operations, including its pipeline network, to mitigate incidences of third-party interference and ensure that spills are detected and responded to as quickly as possible,” he said. “There are also daily over-flights of the pipeline network areas to identify any new spill incidents or activities.
We have also installed state-of-the-art high definition camera to a specialised helicopter that greatly improves the surveillance of our assets and have implemented anti-theft protection mechanisms on key infrastructure.”
Spill response and clean-up
Besides, he said: “When a leak is identified, production is suspended and efforts made to contain any spilled oil. We regularly test our emergency spill response procedures and capability to ensure staff and contractors can respond rapidly to an incident.
“In line with government regulations, a Joint Investigation Visit (JIV) team visits the spill site to establish the cause and volume of oil spilled.
The team is led by the SPDC staff and includes representatives of the regulatory bodies, police, the state government, NGOs and impacted communities.”
The SPDC JV cleans and remediates the area impacted by spills from its facilities, irrespective of cause.
In the case of operational spills, it also pays compensation to people and communities impacted by the spill. Once clean-up and remediation are completed, the work is inspected, and once satisfactory, approved and certified by Federal Government of Nigeria regulators – the Department of Petroleum Resources and National Oil Spill Detection and Response Agency.
SPDC’s remediation practices are compliant with the Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (EGASPIN), Revised Edition 2002 as well as other relevant international standards.
The Federal Government has a lot to do to bring back peoples’ confidence in its judiciary.
It owns about 55 per cent stakes in most of joint ventures with the international oil companies (IOCs) and it should also lead efforts to put an end to oil spills through sabotage, accident or operation.
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