Shell Petroleum’s pollution of Bonga communities in the Niger Delta and attendant penalties for severe environmental devastation should be a straightforward case. However, that compensation cum justice has been delayed and now verges on denial 12 years after. It signposts either corrupt manipulation of the justice process, or tardiness of the Federal Government in upholding rights of its people – or both. Beyond the victims’ feeble attempt to fight a recalcitrant multinational in its own corner, it behooves the Federal Government to defend both the victims and Nigeria’s territoriality from abusive trade partners.
Recall that on December 20, 2011, the oil tanker belonging to Shell Petroleum was loading at the Bonga community oil field, located in the South-east of the Niger Delta, when a spill occurred, resulting in the release of approximately 40,000 barrels of crude oil. This incident, which took place 120 kilometres off the Delta coast, led to severe environmental devastation.
In pursuit of justice, the Bonga community, consisting of 27,830 individuals and 457 communities, filed a lawsuit against Shell in the United Kingdom, titled: Harrison Jalla and Abel Chujor v. Shell International Trading and Shipping Co Ltd (STASCO) and Shell Nigeria Exploration and Production Company. Following an unfavourable ruling from the English lower courts, the Bonga community appealed the case to the UK Supreme Court. The essence of their appeal at the Supreme Court was that the damage caused by the oil spill constituted a continuing tort until the cleanup was completed, as the cleanup process was still ongoing.
However, in its defence, Shell argued that the community’s claim was statute-barred, thus the Court lacked jurisdiction to entertain it. Shell also disputed the lawsuit by claiming that it was not a representative suit, but rather a personal suit brought by only two individuals from the Bonga community.
In upholding Shell’s defence, the UK Supreme Court determined that the Bonga community’s appeal was statute-barred, as it was not filed within the six-year Limitation Period required by UK law for such types of actions. Contrary to the community’s argument, the court held that there was no continuing damage because the oil spill was a one-off occurrence, and thus the damage should be assessed as one-off damage within the limitation period of six years. In other words, the court concluded that the damage caused by the pollution from the Bonga Oil Spill could not be considered continuing damage beyond the limitation period.
Expectedly, this Supreme Court decision has sparked controversy across the board. For instance, a spokesman for the Bonga community argues that the appeal dealt with by the UK Supreme Court was only an interlocutory matter related to a continuing tort, and not the substantive suit, which is still pending before Justice O. Farel. If the spokesman is correct that the Supreme Court did not adjudicate the entire case and that the Bonga Community still has to face the substantive claim before Justice O. Farel, then the new government must do everything possible to ensure that the case of the Bonga community is diligently and professionally prosecuted.
It is evident that there is more to the matter than meets the eye. First, we wonder why the action was initiated in the UK instead of Nigeria where the spillage occurred. Why was there gross negligence in not bringing the action within the limitation period? The claim against Shell arose on December 20, 2011, when the oil spill occurred. The oil spill had been reported against Shell in July 2012. Why were no steps taken to commence legal action against Shell until December 13, 2017, at the expiration of the six-year limitation period? Why was STASCO not joined as a defendant until April 4, 2018, more than six years after the spill and its immediate aftermath?
From the above, it is clear that the Federal Government has not diligently and professionally prosecuted the case. To begin with, the Federal Government seems to be too lenient with Shell and other oil companies in the country. It is not unlikely that some corrupt traditional rulers in the Bonga community have been bribed by the oil companies in the Niger Delta to work against the interest of the Niger Delta communities. For the vast majority, the Federal Government is simply allowing Shell and other oil companies in the Niger Delta to enjoy undeserved privileges. Moreover, the National Oil Spill Detection and Response Agency (NOSDRA), in charge of detecting oil spills, is grossly weak and inefficient. Often, fines imposed on Shell by the agency for oil spills go unpaid, and the agency does not hold Shell accountable. It is probably only in Nigeria that Shell and other oil companies can cause oil pollution endangering the lives of many community members and get away with it. For example, when an oil spill occurred in the Gulf of Mexico, Shell promptly paid the stipulated penalty within 48 hours.
Consequently, the President Bola Tinubu-led administration should endeavour to make Shell and other oil companies operating in the Niger Delta accountable to their host communities. It is essential for the government and stakeholders to work collaboratively, prioritise environmental protection, and ensure accountability throughout the oil industry to effectively address and prevent oil spillage.
As the chief legal officer of the country, the incoming Federal Attorney-General should play a crucial role in upholding the law, promoting justice, and ensuring the fair administration of justice. To perform his duty diligently, the incoming Federal Attorney-General should consider strictly enforcing the laws governing oil exploration, extraction, and transportation activities, as well as spill prevention, containment, and cleanup. Regular inspections and audits should be conducted to ensure compliance, and penalties should be imposed for violations. It is important for the Federal Attorney-General to maintain professionalism, integrity, and a commitment to justice throughout his tenure. He must exercise his prosecutorial powers impartially, free from any political interference or bias. He should ensure that cases are prosecuted based on evidence, without favouritism or discrimination.
The new administration should develop and implement detailed emergency response plans to address oil spills promptly and efficiently. This includes establishing dedicated response teams, stockpiling equipment, and implementing training programmes for spill containment, cleanup, and environmental rehabilitation. The government should also implement a comprehensive monitoring and surveillance system to detect oil spills early. This can involve the use of satellite imagery, aerial surveys, underwater sensors, and regular inspections of oil infrastructure. Rapid detection allows for swift response and minimises the potential damage.
Public awareness campaigns should be carried out to educate communities, industries, and individuals about the risks and impacts of oil spills. In this age of high technological advancement, the new administration should encourage research and development of new technologies for oil spill prevention, detection, and cleanup. It should support innovative solutions such as improved pipeline monitoring systems, advanced containment barriers, and environmentally friendly cleanup techniques.
It is imperative for the government to conduct thorough and independent environmental impact assessments before approving any oil-related projects. These assessments should evaluate the potential risks and impacts on local ecosystems, wildlife, and communities and incorporate the findings into decision-making processes. The government should involve local communities and stakeholders in decision-making processes regarding oil-related activities. It should empower communities to participate in monitoring efforts, spill response planning, and environmental restoration projects. Oil companies should establish mechanisms for meaningful dialogue, consultation, and participation with community members, indigenous groups, NGOs, and other relevant organisations. This ensures that the concerns and interests of the community are taken into account in decision-making processes.
There is no doubt that oil companies can contribute to the social and economic development of the communities in which they operate. This can be done through job creation, local procurement, infrastructure development, and support for education, healthcare, and other social programmes. The company should have clear policies and initiatives in place to benefit the local community, and not further impoverish them.