Nigeria: Farmers v. Shell - A Case of Long-Distance Justice

Photo: Victor Temofe Mogbolu/UNEP
UNEP scientists inspecting a pipeline right of way around 30 metres wide cut through mangroves in Ogoniland.

"Justice" is what Eric Dooh said he and three fellow Nigerians were seeking in a courthouse in The Hague on Thursday. The farmers are suing Royal Dutch Shell, one of the world's largest multinationals, for polluting their land and fishponds with leaked oil. RNW recaps events from this precedent-setting case.

That he travelled 9,000 kilometres to seek justice may seem remarkable. But as Dooh said: "Shell people covered the same distance when they came to the Niger Delta to look for oil more than 50 years ago." Here in the Netherlands, he believes true justice can be rendered. "In Nigeria, our legal system is corrupt," he stated, surrounded by media before the trial began.

Before a packed courtroom Dooh's lawyer, Channa Samkalden, argued that with proper maintenance, Shell could have prevented oil from leaking from its pipelines and damaging the environment. She claimed that the company's head office in The Hague failed to replace pipelines that they knew needed replacement.

Seventy-five percent of all oil spills in Nigeria may be caused by sabotage, as Shell claims, but the sabotage reports are not trustworthy in a corrupt country, the lawyer continued. And even so, the company has the responsibility to prevent sabotage in order to prevent environmental damage. Samkalden repeatedly insisted on what she called "great discrepancy" between what Shell wants to show on paper and the reality on the ground in the Niger Delta.

The conclusion: Shell has failed to exercise its duty to care.

Shell's closing arguments

Presenting closing arguments, Shell's lawyer, Jan de Bie Leuveling Tjeenk, started by emphasizing that problems in the Niger Delta are so great that they cannot be solved by court cases like this one, initiated by the four Nigerians and the Dutch branch of the international NGO Friends of the Earth.

One by one, Tjeenk then set out to refute the plaintiffs' arguments. Friends of the Earth, he suggested, has not substantiated in sufficient detail why SPDC, Shell's daughter company in Nigeria, and parent company Royal Dutch Shell should be held liable for environmental damage in the Niger Delta caused by the oil leaks. Proof of liability is required in civil cases such as this one.

Tjeenk was looking for facts. The plaintiffs should spell out exactly what measures Shell should have taken to prevent acts of sabotage, he said. Friends of the Earth should prove who the rightful owners of the contaminated land and fishponds are and show evidence that the plaintiffs are the rightful representatives of their communities.

Duty of care

Liesbeth Enneking, a Dutch legal researcher who has been monitoring this case, says that the court, taking into account Nigerian law, will have to balance the interests at stake. The risks involved in Shell's oil exploration activities come up against the need for the farmers to be protected against oil spills.

"In the end, it will be about unwritten rules pertaining to duty of care," said Enneking. "The court will ask: looking at unwritten rules, has Shell acted with proper care in this case? If the court says that Shell could have done more to prevent oil spills, it will rule that Shell is liable and should pay compensation to the plaintiffs. If Shell is not found liable, it does not mean that similar cases will not be brought in the future. It's a little bit like the genie is out of the bottle. People have seen that this is a way of finding redress for harm caused by multinationals in host countries where it is often difficult to find redress."

Afterthoughts

During a trial break, Dooh seemed visibly impressed by his lawyer, having listened to how Samkalden managed to cite so many sources he had never heard about. "Her strongest argument," he said, "is that Shell has no complete evidence to show that the spill in my village was caused by sabotage."

After the court session, a reporter asked Dooh why once in a while during the case he seemed to be chuckling. "Oh, that was when the lawyer said there was no proper evidence that our property had been destroyed," he explained, referring to the defence. He then produced his briefcase full of documents, showing some that he thinks his lawyer might find useful.

And what did he think of Shell's final arguments? "They were supposed to talk about how they intend to develop the area, not about sabotage, sabotage, sabotage," he said.

Dooh does not doubt that justice will be done. As he put it: "The judge is not taking sides."

Announcement of the verdict is expected for 30 January 2013.

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