Nigerian farmers vs. Shell: A case of long-distance justice

Nigerian Farmers at the Court in the Netherlands.

Radio Netherlands: When oil is spilled and contaminates people’s lands and waters, who is to blame? This is the central question in a unique court case that took place this week in the Netherlands. It’s a case that could have major implications for multinationals the world over.

Three communities in Nigeria decided to take legal action against the Dutch/British oil multinational Shell. That the case is taking place in the company’s home country, the Netherlands, is new – normally cases occur where the damage is done. In the language of experts, that’s called foreign direct liability. Radio Netherlands’ reporter Helene Michaud was present to hear the final arguments in the landmark trial.

Justice
“Justice” is what Eric Dooh said he and three fellow Nigerians are seeking in a courthouse in The Hague. The farmers are suing Royal Dutch Shell, one of the world’s largest multinationals, for polluting their land and fishponds with leaked oil. 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 failed to replace pipelines that they knew needed replacement. And that the parent company’s headquarters in The Hague knew about this.
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 the “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.

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.”

Shell’s closing arguments
Presenting closing arguments, Shell’s lawyer, Jan de Bie Leuveling Tjeenk, started by emphasizing that the 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 Friends of the Earth.

One by one, Tjeenk then set out to refute the plaintiffs’ arguments. He argued that the parent company in The Hague and its subsidiaries in Africa are separate entities. It could not be assumed that the Dutch headquarters was involved in decisions about day-to-day operations in the Niger Delta.

Looking for facts
Tjeenk was looking for facts. The plaintiffs should spell out exactly what measures the multinational 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.

The conclusion: Friends of the Earth has not substantiated in sufficient detail why SPDC, Shell’s subsidiary in Nigeria, and the parent company Royal Dutch Shell should be held liable for environmental damage in the Niger Delta. Proof of liability is required in civil cases such as this one, he argued.

And what did Dooh think of Shell’s final arguments, RNW asked. “They were supposed to talk about how they intend to develop the area, not about sabotage, sabotage, sabotage,” he said.

‘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 against the need for the farmers to have a clean environment.

“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.”

Even if Shell is not found liable in this instance, she added, the multinational could be taken to court on similar charges in future. “The genie is out of the bottle. People have seen that this is a way of getting justice for harm caused by multinationals in countries where it is difficult to seek redress.”

Afterthoughts
After the court session, RNW asked Dooh why he seemed to be chuckling at various moments during the trial. “Oh, that was when Shell said there was no proper evidence that our property had been destroyed,” he explained. He then produced a briefcase full of documents, showing some that his lawyer might find useful.

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

The verdict is expected on 30 January 2013.

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