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Monday, October 2, 2023

Supreme Court grants permission to appeal Nigerian communities in fight against Shell

Lawyers representing 40,000 Nigerian farmers and fisherman from two communities in the Niger Delta have been given permission to take their legal claim against the oil giant Shell to the UK Supreme Court.

Oil spill pollution
A water body in the Niger Delta polluted by crude oil

The decision will allow the two communities from Bille and Ogale in the Niger Delta to appeal to the UK’s highest court. The communities are said to have suffered from decades of pollution from Shell’s pipelines.

They have taken their case to the English courts on the basis that Royal Dutch Shell (RDS), which is headquartered in London, is legally responsible for the environmental failures of the Shell Petroleum Development Company of Nigeria (SPDC), a subsidiary of RDS.

The Supreme Court hearing will appeal a judgment from February 2018, from the Court of Appeal in London, which upheld an earlier High Court judgment, that the English Court does not have jurisdiction over the claims.

The original High Court Judgment from January 2017 ruled that RDS was merely a holding company which did not exercise any control over its “wholly autonomous” Nigerian subsidiary, SPDC.

Lawyers from Leigh Day immediately appealed the decision from the Court of Appeal and although the Judges agreed that the High Court’s decision was flawed, by a majority the Court ruled that there was insufficient evidence to hold RDS legally liable (with a strong dissent from Lord Justice Sales).

The claimants applied for permission for the case to be heard in the Supreme Court. The decision on whether the Shell case could proceed was stayed whilst the Supreme Court heard a similar case brought by Leigh Day on behalf of almost 2,000 Zambian villagers against Konkola Copper Mines and its parent company Vedanta Resources Plc.

In April 2019, the Supreme Court ruled in the Vedanta case that companies can be held to account for the commitments they make publicly, regarding their subsidiaries and their commitments to the communities they serve.

Following this judgment in the Vedanta case, the case against Royal Dutch Shell has been allowed to proceed to the Supreme Court.

Daniel Leader, a partner at Leigh Day who is representing the Nigerians, said: “We are delighted to have been granted permission to take this case against Shell to the Supreme Court. We hope that the Court will apply the principles set out in the Vedanta judgment to this case and allow this case to proceed in London.

“We believe the era of corporate impunity is drawing to a close. It is no longer acceptable for companies to make billions out of developing world resources whilst causing devastating damage to the environment and local communities.”

King Okpabi, the Ruler of the Ogale Community, said: “The English courts are our only hope because we cannot get justice in Nigeria. So, let this be a landmark case.  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.”

Ogale and Bille communities allege that they have suffered systematic and ongoing oil pollution for years because of Shell’s operations. The oil pollution to Ogale’s water wells was documented by the United Nations Environment Programme (UNEP) in 2011 and signs have been erected around the town prohibiting the use of water wells.

Shell does not dispute that both communities have been severely polluted by its oil, or that there is yet to be an adequate clean up. The communities are seeking justice through the English courts against the parent company because they maintain that there may be no prospect of justice in Nigeria.

The Ogale community is a rural community of about 40,000 people situated in Ogoniland in the Niger Delta.

The people of Ogale have traditionally been either crop farmers and fishermen who rely on Ogale’s tributaries and waterways as fishing areas. 

According to Shell’s records, the community has been impacted by at least 40 oil spills from its pipelines and equipment since 1989, including 23 spills in the past four years.

In 2011, UNEP published an Environmental Assessment of Ogoniland which included extensive testing of the Ogale Community. The test reported serious contamination of agricultural land and waterways in the community as well as its groundwater, exposing Ogale’s inhabitants to serious 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.

Community members report that the oil contamination has impacted on their farming productivity, and fishing has all but ended in the community.

Residents are reportedly not being provided with clean drinking water – the water scheme that had been introduced in the community has not functioned for several years and community members who are not able to pay for alternative water often have to drink contaminated water.

Bille is located in the Degema Local Government Area (LGA) in Rivers State, Nigeria. Populated by nearly 13,000 residents, it is comprised of several 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. According to the legal action, the creeks, mangroves and island communities in Bille have been devastated by oil emanating from an oil pipeline known as the Nembe Creek Trunkline (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 NCTL and other oil infrastructure. This is believed to be the largest loss of mangrove habitat in the history of oil spills, which has destroyed the livelihoods of the Bille people.

“I am delighted that the Supreme Court has granted permission to appeal the Court of Appeal’s judgment in Okpabi v. Royal Dutch Shell plc.  We think that the appeal will be heard in the autumn of this year and it is important that interested parties intervene in the case, as they did in Vedanta. “We are hopeful that the Supreme Court will overturn the Court of Appeal’s majority judgment. This will be another important moment in the development of the jurisprudence on parent company liability by the Supreme Court which will build on their analysis in Vedanta,” said Leader.

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