Snail's Pace Justice

Nigeria’s Ogoniland: UK Supreme Court Tests Royal Dutch Shell Liability

By David Whitehouse

Posted on June 23, 2020 08:22 – 2020-06-23T073845.725 © An overview of the Niger Delta suspected of harbouring pirates. REUTERS/Ron Bousso
An overview of the Niger Delta suspected of harbouring pirates. REUTERS/Ron Bousso

Niger Delta communities take their fight against Royal Dutch Shell Plc over oil pollution in Ogoniland to the UK Supreme Court today.

The case concerns pollution caused by Shell in the Niger Delta, where it started drilling in 1958. Protests against the resulting pollution started in 1990, and Shell pulled out of Ogoniland in 1993.

The hearing starts at 10:30 BST and is being live-streamed here. It’s scheduled to last a day.

READ MORE Nigeria’s silent killer: Welcome to Ogoniland

The communities, which represent over 40,000 Nigerians, are seeking to establish the legal responsibility of Royal Dutch Shell for the environmental failures of its subsidiary the Shell Petroleum Development Company (SPDC) of Nigeria.

READ MORE Nigeria’s silent killer: Compensation to the communities

The plaintiffs are appealing against previous rulings that Royal Dutch Shell has no legal responsibility. They are drawing hope from an April 2019 ruling by the Supreme Court which held Vedanta Resources Plc responsible for pollution by a Zambian subsidiary.

A report published by Amnesty International last week documents what it says is the failure of the Ogoniland clean-up operation over the last decade.

  • Amnesty refers to a 2011 report by the UN Environment Programme (UNEP) on oil pollution in Ogoniland, which acknowledged the devastating impact of the oil industry and made recommendations for clean-up.
  • In July 2012, the Nigerian government established the Hydrocarbon Pollution Restoration Project (HYPREP) to implement the plan.
  • But in November 2019, UNEP found that “HYPREP is not designed or structured, to implement a project as complex and sizable as the Ogoniland cleanup.”
  • UNEP said that at the current rate of disbursement, it would take HYPREP 100 years to utilize its five-year budget.
  • The new Amnesty report says that clean-up work has started on just 11% of the total area identified by UNEP as needing remediation.

Shell’s Response

Shell contests the Amnesty report’s findings.

  • “This report fails to recognise that the majority of UNEP recommendations need multi-stakeholder efforts coordinated by the Federal Government of Nigeria and that SPDC has acted on all recommendations directed to it in the UNEP Report – and completed most of them,” a spokesperson for the Shell Petroleum Development Company (SPDC) of Nigeria said.
  • SPDC says it’s also “implementing programmes to prevent and minimise the impact of crude oil theft and illegal refining in impacted areas where it operates: for example by strengthening community-based pipeline surveillance and promoting alternative livelihood programmes, such as youth entrepreneurship initiatives and educational scholarships.”
  • “We continue to actively support the clean-up process along with other stakeholders within a transparent governance framework,” the spokesperson said.

Amnesty questions that transparency, pointing to the oversight roles given to Shell in the governing council and board of trustees of HYPREP, as well as the use of its experts for HYPREP projects.

  • “Such potential conflicts of interest risk eroding public confidence in HYPREP’s independence,” Amnesty argues.
  • “If trust in HYPREP is reduced among local communities, they are less likely to turn to HYPREP to express concerns about how the clean-up is carried out.”
  • The Nigerian government, Amnesty argues should introduce legislation to make the agency independent. “Oil companies like Shell should have no role in the oversight bodies and should not second staff to HYPREP.”

To be fully transparent, Amnesty argues, Shell needs to:

  • Publish the data behind its claims that it has cleaned up and remediated sites named in the UNEP report
  • State which sites identified by UNEP have not yet cleaned up and why
  • Publish the criteria by which Shell selects clean-up contractors and publish the names of all those that it has used.

Bottom line: Whatever the outcome of today’s case, Shell will be exposed to criticism over the slow pace of the clean-up as long as there are perceived conflicts of interest at HYPREP.

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