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Is it ever too late for accountability? UK Denies justice to Niger Delta Oil Spill victims

The ruling on the Bonga oil spill counterpoises the widespread and naive thinking in certain quarters that the British judiciary would be an independent and impartial adjudicator in matters involving British interests
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On 10 May 2023, the UK’s Supreme Court ruled that it was too late to sue the Anglo-Dutch Shell Nigeria Exploration and Production Company (SNEPCO) over the Bonga offshore oil spill of 20 December 2011. A group of 27,800 individuals and 457 communities working through the National Oil Spill Detection and Response Agency (NOSDRA), the Nigerian government’s lead agency responsible for building conformance with environmental legislation in the Nigerian petroleum sector, had demanded that SNEPCO (also known as Shell) be fined US$5 billion administrative fee for environmental damages caused by an oil spill at its offshore Bonga field in 2011. The UK Supreme Court’s ruling rejected clearly valid claims made by the group on the basis of a technicality, proving once again that the sovereign integrity of Nigeria and other potential victims on the continent is compromised if they allow themselves to be at the mercy of foreign powers and their legal systems.

For starters, the ruling on the Bonga oil spill counterpoises the widespread and naive thinking in certain quarters that the British judiciary would be an independent and impartial adjudicator in matters involving British interests. As a key branch of the British government, the UK Supreme Court is complicit in the neo-imperialistic zero-sum drive of the UK establishments in Africa and elsewhere. That the Court’s decision is not based on the substance of the case but on the technicality of time is clear evidence of this complicity. Consider this.

The Nigerian claimants who are victims of the hazardous effects of the Bonga oil spill argue that their shoreline as well as the sea and aquatic life faced—and continue to face—a devastating impact from a leak at the Bonga oilfield which unleashed 40,000 barrels of crude oil into the Gulf of Guinea maritime domain. The leak occurred during an overnight cargo operation when crude oil was being transferred from the Bonga Floating Production Storage and Offloading through the Single Point Mooring buoy and onwards onto a waiting oil tanker. It is noteworthy that the US$5 billion administrative fine sought by the group is consistent with global best practices as similar actions have been activated against infractions by oil corporations in other oil-producing countries such as Brazil, Chad, Saudi Arabia, and the US.  In June 2022, for instance, Great Lakes Dredge & Dock Company was fined US$1 million for negligently causing the discharge of a harmful quantity of oil into a navigable water of the US, in violation of the Clean Water Act. However, rather than considering the validity of the assertions made by the Nigerian claimants, the British Court chose to dismiss their claims on the technical ground that the appellants had filed their case after a six-year legal period had elapsed.

Worst still, although the Supreme Court acknowledged that the 2011 oil spill was one of the largest spills in the Nigerian oil exploration history, it held that the spill was a one-off event, not a continuing nuisance. This is a slap in the face of populations who are still affected by the pollution orchestrated by the Bonga offshore oil spill on lands and waterways, which continues to exert harmful effects on crop farming, fishing, drinking water, mangrove forests, livelihood opportunities and religious shrines in the region.

Moreover, the dubious interpretation of the Court on the nuisance caused by Shell activities conveniently overlooks the tragic history of pollution from oil spills and oil well fires in the region caused by Shell and other multinational oil companies, including Agip, Chevron, Elf and Mobil, who have also remained active players in the Nigerian extractive industry. For instance, the 2011 report of the United Nations Environment Programme clearly shows that Shell was not doing enough to clean up oil spills and rehabilitate decrepit oil infrastructure in the Niger Delta, especially in Ogoniland.

Furthermore, extractive activities by these multinational companies have caused serious environmental, health and social devastation in the Niger Delta. Crude oil extraction has caused the pollution of the river basin and surrounding land, the destruction of subsistence crops, and the expropriation of local residents’ territories. Oil extraction by these companies in Nigeria has accounted for frequent oil spills, contamination of the atmospheric environment, loss of biodiversity, food insecurity, aesthetic degradation and loss of landscape, soil contamination, waste overflow, loss of vegetation cover, surface and groundwater pollution, large-scale disturbance of hydro and geological systems, fires, soil erosion and global warming.

Indeed, the activities of Shell and other multinational oil companies in Nigeria have brought more harm than good to the riparian communities in the Niger Delta. These activities have also led to other health and psycho-social challenges such as accidents, radiation, malnutrition, occupational diseases and accidents, militancy, deaths, stress, depression and suicide, alcoholism-related health problems, decrease in fertility, and outbreak and spread of infectious diseases.

Given the foregoing verifiable evidence of ecological destruction of the Niger Delta largely due to the 2011 Bonga oil spill and other extractive activities of Shell and allied multinational oil companies in the region, it is outrageous that the British Supreme Court held that the spill was not a continuing nuisance, and therefore time-barred even when the effects are still widespread. Rather than sending a message to all these Western companies as a Nigerian or African court would, the British Supreme Court chose to protect British economic interests by shielding a British corporation from accountability. By doing so, the UK court ruling clearly adds insult to injury.

There is no doubt that the largely unconscionable basis of the court’s judgement was made possible because the UK court assumed international jurisdiction over Shell’s criminal activities in the Niger Delta. This was motivated by nothing other than the quest for a British court to protect British overseas economic interests. However, within the context of international jurisprudence, allegations concerning Nigerian plaintiffs in dispute with an Anglo-Dutch subsidiary in Nigeria, over issues which took place within Nigeria, should be heard in Nigeria under the Nigerian municipal laws.

Overall, the unfavourable judgement was also made possible because the Nigerian state and its agencies have perennially shown their weak institutional capacity to compel the multinational oil companies to adhere to the extant laws against oil pollution in the country. This capacity deficit has emboldened these oil companies to operate in Nigeria in a manner they cannot even contemplate in their home countries.

Given the foregoing, it is high time the Nigerian government stood up for its citizens and demanded justice from Shell and other multinational oil corporations operating in the country. In particular, the government should impress it upon Shell to take responsibility for the oil spill that arose from its operations in the Niger Delta. The erring companies should not only be fined in line with the extant regulations in Nigeria but adequate compensation should be paid to individuals and communities who have been subjected to several insufferable environmental, health and psycho-social torture due to the Bonga oil spill and other related incidents.

Allowing Shell’s ecological despoliation of the Niger Delta to continue unchecked is unacceptable and does not project Nigeria in good light within the comity of oil-producing countries. The Nigerian government, through NOSDRA and other agencies, should muster the courage to assert its sovereign authority by activating its relevant laws against environmental degradation caused by the activities of the multinational oil companies in the country.

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