from Africa in Transition

Dutch Court Finds for Shell in Niger Delta Pollution Case

January 31, 2013

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Environmental degradation associated with the petroleum industry in the Niger Delta impacts directly on the livelihoods of indigenous farmers and fishermen. Environmental issues were an important basis for popular support, or at least acquiescence, for the low level insurgency carried out against the federal and state governments by the Movement for the Emancipation of the Niger Delta (MEND) between 2004 and 2007, with sporadic activities continuing into the present.

In part because it has operated in Nigeria for more than fifty years, and because its operations have been mostly on land, the multinational oil giant Shell is often the focus of local and international environmentalist ire. According to the Nigerian press, the director of the Dutch branch of Friends of the Earth, Geert Ritsema, claims Shell should be held responsible for pollution in the Niger Delta region: “The pipeline network of Shell in Nigeria is in a very poor state.” He said that Shell has spilled twice as much oil over the years as the amount leaked during the British Petroleum disaster in the Gulf of Mexico in 2010. Shell and other big oil companies respond that the spills are caused by sabotage, oil theft, and illegal refiners, and that when spills occur, they are cleaned up to the satisfaction of the Nigerian federal government.

Nigeria’s oil belongs to the Nigerian state, but most of the oil is produced by private oil companies, such as Shell, in partnership or by agreement with the Nigerian National Petroleum Corporation, a government-owned entity. Most of the profits go to the Nigerian state. In part because of this close relationship between the oil industry and the state, international environmentalists seek to try pollution cases in European or American courts rather than Nigerian.

Accordingly, four Nigerian farmers, with the support of the Dutch non-governmental organization Friends of the Earth, sued Royal Dutch Shell in the Dutch District Court of The Hague for four oil spills between 2004 and 2009. The case was watched closely in Nigeria and by the international environmental community.

On January 30, 2013, the court ruled that the oil spills were, indeed, caused by sabotage, that Royal Dutch Shell is not liable. It dismissed the claims of the Friends of the Earth.

The court did find that the Shell Petroleum Development Company of Nigeria (SPDC), a Nigerian subsidiary, could have prevented the sabotage in one case by plugging the well. The Court acknowledged the SPDC subsequently contained the leak. Nevertheless, legal proceedings continue against SPDC with the possibility of damages compensation to one farmer.

This Dutch court ruling would appear to support the argument that much of the Niger Delta pollution is, indeed, caused by criminal activity carried out by local actors. In what may be an example of making lemonade out of lemons, Evert Hassink,a spokesman for Friends of the Earth expressed disappointment in the verdict which he described as “mixed” but observed that “we’ve succeeded in establishing the principle of going to court in the Netherlands or Europe because of what happened in another country.”

The Nigerian media quotes Wale Fapohunda, a commissioner with the National Human Rights Commission, as saying the fact the case was filed in The Hague shows a lack of faith in the corrupt Nigerian judicial system. Lawrence Quaker of Human Rights Law Services in Lagos, said Nigerians are seeking international justice because of the failure of Nigeria’s judiciary. He observed that former Delta State Governor James Ibori was convicted in a UK court of stealing U.S. $77 million in public funds. In Nigeria, he had been found not guilty. Quaker is quoted as saying “It shows that the judiciary abroad is not biased and we can take cases against companies to their motherland for adjudication and get a fair hearing.”