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Legalbrief   |   your legal news hub Thursday 29 October 2020

Delayed Niger Delta clean-up - the REAL story


One of the world’s greatest avoidable ecological disasters, the 2008/9 oil spills in Nigeria’s Bodo Creek, has landed back in court, in London, where the judge has heard why, two years after a binding agreement between all parties, virtually no progress has been made with a clean-up.


Giving judgment last week on some technical issues raised between the parties, Mr Justice Peter Coulson had strong words for the various individuals and groups that had brought the initial claim against Shell, Nigeria. He warned that court proceedings could not be used as some sort of ‘gun in the cupboard’, brought out as and when it suited them and ‘brandished’ at the head of Shell.


His judgment was the latest round in an ongoing battle to rehabilitate the Niger delta areas of Nigeria, left devastated by pollution caused by repeated oil leaks. Shell has admitted liability for the 2008/9 spills and some 18 claimants brought legal action, on a representative basis, for damages and an order that the area been rehabilitated.


In the latest case, argued on 16 June, Coulson heard evidence about why the clean-up had not yet started.


An elaborate structure was established to oversee the process. Initially called the Bodo mediation process, it involved Shell and the affected community as well as the UN environmental programme, the Dutch embassy and Nigerian federal and government institutions among others. A memorandum of understanding finalised in April 2015 detailed the way forward. It included a provision that the clean-up and restoration of the affected areas would be carried out under Nigerian law, ‘by reputable contractors with proven international track record and experience with large scale clean-up, remediation and restoration works in a complex environment’ approved by the plenary body of the mediation process structure, known locally as BMI.


In court last month, Shell identified two main problems that have prevented the process from getting off the ground: violence at the site of the proposed clean-up, and political developments that have led to court cases in Nigeria, aimed at stopping the rehabilitation of the area.


‘The first relates to physical violence, threats and hostility from some of those said to be represented by the (local individuals and groups claiming compensation), aimed at those charged with cleaning up the pollution.’


The judge quoted from various documents put up in evidence by Shell. Among these are minutes and reports of the mediation process body that made clear reference to these threats. For example, one report described the site offices of the clean-up contractor were physically attacked by ‘a group of 2 000 youths, who insisted that all work be stopped, that community contractors should be included in the project execution’ and that young people involved in the project should be given an increase in their wages.


In October 2015, when the chairperson of the mediation process appealed to people attending a meeting on the situation to allow the clean-up to go ahead, ‘there was a thunderous NO! from the crowd’. BMI officials reported that the crowd wanted ‘the money’ to be shared with the local community. ‘Although it was pointed out that there was no money equivalent of the remedial works to be shared out with anyone, it does not appear that this appeased the crowd.’


Leigh Day, the UK-based international law firm that specialises in environmental liability matters among others, represents the local community. A letter by Leigh Day to the community, quoted by the London court, explained the potentially catastrophic effects of not allowing the clean-up to start: Shell could simply walk away and the Bodo creek would not be cleaned.


Referring to the court action in Nigeria that is hampering the clean-up, Coulson said there were six sets of legal proceedings begun in 2016 and 2017 by those claiming damages against Shell. These applications aimed to ‘prevent the remediation works being carried out.’


The judge commented: ‘Given the evidence produced recently by the claimants as to the very high level of pollution around Bodo Creek, it may be hard to imagine anything more self-defeating than attempts by those affected to stop the clean-up.’ But the fact that these applications had been brought was ‘incontrovertible’, and the most recent were launched in April and May this year.


The political situation in the affected area of the delta is highly complex, with competing groups and individuals claiming they represent the people of Bodo Creek. Some of those who were initially claimants in the matter have since died, causing even more complications about who should replace them.


Writing about the way forward for the dispute, the judge spoke of his concern about the legal costs. He pointed out that the one-day hearing on 16 June ‘generated seven lever arch files of material and a total costs bill said to be in the order of £280 000 (US $360 000 or nearly R5m). He said he shared concerns about the potential expense of the litigation, but added a warning to the lawyers involved that this problem could be ‘dealt with’ by ‘stringent costs management powers’. ‘I made plain to the parties during the hearing that a total sum of £280 000 in respect of this one-day application was excessive. Proper cost management orders will need to be put in place if the action is to continue and although those can only deal with the costs to be incurred in the future, the approved budget for those costs can of course reflect the costs which have already been incurred.’


Then he issued the warning to those claiming reparations from Shell not to think they could keep going back to court as though this threat were ‘a gun in the cupboard’. He said that from what he had seen, the mediation process remains the best – and perhaps the only – way in which the clean-up scheme could be achieved. ‘For their own sake, the claimants need to co-operate with the (mediation process) in every day. The consequences of not doing so are stark.’


Whether the local community will accept the legal realities of the world in which the dispute is being played out remains to be seen. But for local people, in the nightmare world in which they now live, where water, land, plants, houses and even the people themselves are perpetually covered in black residue with perilous risk to the health of every living thing in the region, the stakes are very high. Add to this the continuing conflict between traditional leaders and traditional leadership groups in the region, along with disaffected young people who no longer see a future for themselves in the delta, and the political mix is almost as toxic as the physical pollution.


King Felix Berebon v Shell