Saturday, July 20, 2024

Nigeria: Nigerian Communities Can Sue Shell for Oil Pollution, High Court Rules

The High Court has ruled that 13,000 Nigerian fishermen and farmers at the centre of a major oil pollution case against Shell can bring claims for breaches of their right to a clean environment under Nigerian constitutional law. If the case succeeds at trial, it will be the first time in legal history that a UK multinational will have been found to have breached a communities’ right to a clean environment.

The move is a major development in the landmark legal claim by the Ogale and Bille communities, who have been fighting the oil giant for a clean-up and compensation after the pollution devastated the area, leaving them without clean water and unable to farm and fish.

The judge found it could be argued the pollution has fundamentally breached the villagers’ right to a clean environment under the Nigerian Constitution and the African Charter and those constitutional rights were directly enforceable and can be relied upon against companies like Shell. Importantly, such claims have no limitation period, meaning Shell would not be able to evade liability on the grounds the communities did not bring their claims within a narrow time frame.

Shell says it has no legal responsibility for the chronic pollution caused in the Niger Delta by its subsidiary, the Shell Petroleum Development Company of Nigeria Ltd (SPDC), which it is claimed has destroyed the villagers’ way of life and created serious risks to public health. The company, which plans to leave the Niger Delta after 80 years of highly profitable operations, has offered the Ogale and Bille communities no remedy or compensation and left the communities chronically polluted.

In 2021, after a four-year legal battle, the Supreme Court unanimously ruled that “there is a good arguable case” that Shell plc (the UK based parent company) is legally responsible for the pollution caused by its Nigerian subsidiary. Despite this, the communities’ legal representatives at law firm Leigh Day say the global oil giant has continued to try to delay and stop the claims. At a hearing earlier this year, Shell raised a series of technical issues which sought to narrow the claims and had the potential to significantly delay the case. These arguments have now been dismissed by the High Court.

Leigh Day international team partner Matthew Renshaw, who is leading the claim against Shell with international team partner Daniel Leader and senior associate Kavita Modi, says Shell must now accept responsibility for the pollution.

Matthew Renshaw said:

“This ruling is a significant moment in the eight-year battle by the Ogale and Bille communities to get Shell to take responsibility for the oil pollution that has blighted their land. During this time, Shell has repeatedly resorted to using technicalities to try to block and delay our clients’ claims. Under Nigerian constitutional law, Shell would no longer be able to argue it has no responsibility for the pollution because it took place more than five years ago. We now hope to move without further delay towards a trial where our clients’ claims for a full clean-up and compensation for the destruction of their way of life can be fully heard.”

Kavita Modi said:

“These important and urgent claims have been proceeding in the English Courts for eight years. Our clients have been living with the impacts of a devastated environment and polluted drinking water for all this time, whilst Shell tries at every turn to delay their claims. The judge’s decision to allow our clients’ human rights claims to proceed brings them one step closer to obtaining justice – the restoration of their environment and compensation for the catastrophic impact the pollution has had on their lives.”

The case is now proceeding to trial to determine whether Shell’s parent company in London, as well as its Nigerian subsidiary SPDC, are legally required to clean up and compensate the two communities. A hearing will take place in the High Court on 12 and 13 December 2023 at which the next stage of legal arguments will be heard in order to set the structure for the trial.


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Notes to editors:

  1. The Ogale and Bille communities in the Niger Delta (estimated combined population of 50,000) have been fighting for justice against the British oil and gas giant, Shell plc, for over eight years. They seek simply to ensure that the oil pollution which has devastated their communities is cleaned up to international standards (Shell concedes it is legally obliged to clean up) and that compensation is provided for their loss of livelihoods and the destruction of their way of life, given that these rural communities’ ability to farm and fish has been largely destroyed.
  • On 12 February 2021, the UK Supreme Court unanimously ruled that there was a “good arguable case” that Shell plc, the UK parent company, was legally responsible for the pollution caused by its Nigerian subsidiary and that the case would proceed in the English courts. The judgment represented a watershed moment in the fight for corporate accountability. The Supreme Court has now confirmed in both Okpabi v Shell and its earlier 2019 decision in Lungowe v Vedanta (environmental pollution from a Zambian copper mine) that parent companies of multinational companies in the UK can be held legally responsible for harms committed by their foreign subsidiaries, and the scope of that potential liability is much wider than previously understood.
  • Shell has shown no interest in providing remedy to the Ogale and Bille communities at a time when they are making unprecedented global profits ($40 billion in 2022). The case is now proceeding to trial to determine whether Shell’s parent company in London, as well as its Nigerian subsidiary, are legally responsible for the harm caused to the communities in Nigeria.
  • Since the Supreme Court ruling in 2021, the legal team for the communities has been preparing for trial in the High Court in London which is expected to take place in 2024. Shell have now served their legal defence, in which they argue that they have no legal responsibility whatsoever for any of the pollution, despite the fact that the communities continue to live with chronic levels of oil pollution caused by Shell’s operations.