The judgment in a preliminary issues hearing in the legal action against the oil giant Shell by 15,000 Nigerian fishermen will be handed down on Friday.
It will determine the legal issues, which will form the basis of potentially the largest ever environmental legal trial expected to take place at the High Court in London in May 2015.
The ‘preliminary issues hearing’ which took place in April 2014 was the first time Shell had to face formal Court proceedings in the UK for its environmental record in the Niger Delta, following two massive oil spills in 2008 and 2009.
The hearing in front of Mr Justice Akenhead, the President of the Technological and Construction Court, considered a range of arguments put forward by law firm Leigh Day, which is representing the Nigerian community bringing the claim, on a range of contentious issues ahead of a full trial next year.
One of the most crucial arguments is whether Shell can be held accountable for the illegal bunkering of its pipelines. Over the years Shell has blamed the ‘bunkerers’ for the great majority of the oil spills in the Niger Delta that has caused an environmental disaster and has devastated the livelihoods of tens of thousands of Nigerian subsistence fishermen and farmers.
Leigh Day argue that under Nigerian law anyone who suffered damage can claim compensation if they can show Shell was guilty of neglect in failing to ‘protect, maintain or repair’ the pipeline.
They argued that Shell should retain this duty of care when it comes to illegal acts against the pipeline, and that it should do a lot more to protect their pipelines from third party theft and should act more rapidly to prevent the spillage of oil when their pipelines are drilled into.
The Bodo community in Nigeria claims that the pipeline, which caused the devastating leaks, is over 55 years old and should have been replaced many years ago.
They argue that Shell have not replaced it due to the cost of doing so, but have kept the oil flowing to protect the enormous revenue it makes from the pipeline despite the damage to local communities.
Speaking in April, before the hearing, Martyn Day the Senior Partner at Leigh Day who is representing the Bodo Community, said: “This is a highly significant hearing in that it will be the first time Shell has been held to account in Britain for its environmental record in Nigeria by a local community.
“It will also have broad implications as the issues which will determine the degree to which Shell is liable in general for the mass pollution of the Delta in which is has pumped and spilt oil over at least the last 20 years.”
The oil devastated the environment surrounding the community of Bodo[1], in Gokana Local Government Area, Rivers State, Nigeria. Bodo is a fishing town. It sits in the midst of 90 sq km of mangroves swamps and channels, which are the perfect breeding ground for fish and shellfish.
The Bodo community is a rural coastal settlement consisting of 31,000 people who live in 35 villages. The majority of its inhabitants are subsistence fishermen and farmers.
Expert evidence indicates 1,000 hectares of mangroves have been destroyed by the spills and a further 5,000 hectares have been impacted.
In 2011 Shell admitted liability for the spills but continues to dispute the amount of oil spilled and the extent of the damage caused.
Leigh Day began the multi-million pound legal action at the High Court in March 2012 after talks broke down over compensation and a clean up package for the community.
Until the two 2008 spills Bodo was a relatively prosperous town based on fishing. According to the claimants’ lawyers the spills have destroyed the fishing industry.
They claim Shell’s response has not been to try and speedily recompense the people of the community but to delay and prevaricate and to use the media to disassemble the position.
The clean up of the 2008 oil spills has even now not commenced. The United Nations, Amnesty International and the Nigerian government have all expressed deep disappointment with Shell’s lack of action in the region.
Impoverished local fishermen have been left without a source of income, and have received no compensation. The Ogoni fishing and farming communities have accused Shell of applying different standards to clean-ups in Nigeria compared with the rest of the world.
Amnesty has described the oil spill investigations ‘a fiasco’. Background: Shell say they were informed of the first leak in early October 2008. The community says by this date oil had already been pumping into the creek for approximately six weeks.
Even then it took Shell over a month to repair the weld defect in the pipeline. The second spill occurred in December 2008 and was also the result of equipment failure. It was not capped until February 2009 during which time even greater damage was inflicted upon the creek as crude oil pumped into the rivers and creeks per day over a period of two months.
The Trans-Niger Pipeline has suffered an incidence of operational oil spills between 2006 and 2010 at a rate 133 times greater than the European average. The legal action will present evidence from research[2] carried out just before the spills which states that the main river channels in the Bodo creek had no physical trace of oil, were ‘near pristine’, were rich in fauna and free of hydrocarbons.
Following the two spills, in September 2009, a Post Impact Ecological Assessment study[3] of the oil spillages was carried out on the Bodo creek. This found a severe reduction in the abundance of marine life with shellfish no longer present and fish numbers dramatically reduced.
The United Nations Environment Programme’s Environmental Assessment of Ogoniland 2011 backed up these findings. It surveyed pipelines and visited all oil spill sites including the Bodo creek.
It found Hydrocarbon contamination in water in some sites to be 1,000 times higher than permitted under Nigerian drinking water standards.
However, three years after the UNEP report nothing has happened and so recourse to foreign Courts is the only option for impoverished and devastated Nigerian communities.
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