In August 2011, the United Nations Environment Programme, UNEP, released its Environmental Assessment of environmental damage on account of spills from oil activities by the Shell Petroleum Development Company, SPDC, in Ogoni land in Rivers State.
Three years down the line, Ogoni land is still nowhere near the emergency clean up as recommended by UNEP, yet some landmark international cases on oil spills in Bodoalso in Ogoniare nearing closure.
In a recent session with a Shell Regional spokesman, Mr. Philip Mshelbila, explains why these cases have dragged on for years as monitored by Clara Nwachukwu. Excerpt:
You would have been hearing of this Bodo spill for years now, and many people are not exactly sure of what it is and what happened, when did it happen and how has it led up to where we are today?
In 2008, we had two incidents on one of our pipelines; this is our oil pipeline that takes crude oil from Bormu to Bonny, where we have our export terminal. The two spills were as a result of equipment failure, so these were operational spills, and we admitted liability and admitted responsibility for these spills because they were caused by equipment failure.
We immediately followed with the Joint Investigation Visit, JIV, which indicated the cause was operational. We immediately then informed the community in conformity with the law, and prepared to pay compensation to those that were impacted.Just as we do with oil spills coming from our pipelines or facilities, we also indicated our interest to immediately commencecleanup of thesespills; this was way back end of 2008 to 2009.
Unfortunately what then transpired was a series of suits in court both locally in Nigeria as well as outside the country. Eventually in 2011, some members of the Bodo community took on a UK lawyer and had a suit filed in a UK court.
A lot of issues that were raised in this suit had to do with the quantum of compensation that was due.We regret the incidence because they shouldn’t have happened in the first place. We believe that there should be no operational spillsoccurring whether in the Niger Delta or anywhere in our operations.However, these ones did occur, and the sad part was, as result of the suits that were filed, the communities were advised not to permit cleanup to happen, until the compensation issues were settled.
And so we did not have access to go in and complete the cleanup of these two spills that occurred. This was the situation that we found ourselves in and the suit has remained in the UK court since 2011, and we have made attemptsat various times to settle the matter with the communities, unfortunately these have been unsuccessful.
At a pointand this was not the first time, last year September there was another attempt on settlement where lawyers from both sides – the communities and SPDC came together and attempted to arrive at a settlement. So, you would have seen some numbers being bandied in the press; those numbers were numbers that were put on the table as an offer to the community at that point in time. And sadly it was turned down by the community on the advice of their lawyers.The beliefwas that they would be able to get more than that out of the UK court.Essentially, when settlement failed you go back to court and the litigation resumed.
Now we have a unique situation here where you have an incident that occurred in Nigeria, the plaintiffs are Nigerians, the affected company is a Nigerian company – all the shareholder entitiesin the SPDC joint venture are registered here in Nigeria, but NNPC actually owns 55% of that joint venture. There is a Nigerian law that addresses this kind of an incident, and we believe that the logical thing to have happened was for this to have been filed within the Nigeria courts.
Very sadly that did not happen. And as we are all aware, the matter has remained in the UK court. Because of the Nigerian nature of the incident, the judge being a UK judge, trying a case of this nature therefore felt that he needed to familiarise himself with the applicable Nigerian law, which is the Oil Pipeline Act of 1990.
What he did was to get some experts on Nigeria law like former retired Supreme Court justices to come in, and to provide him with interpretation of the relevant Oil Pipeline Act of 1990. And so this eventually held early this year between the end of April through May, which was when what is called the preliminary issues trials held. So it was about interpreting the relevant Nigeria laws which willbe applied to the case.
There were seven issues that were tabled for the judge to consider, and the judge then looked at each of these seven issues and passedhis judgments accordingly, which the media publicised.
The first point that was raised was whether the claimants are only entitled to claim compensation in respect of these 2008 oil spills, under the Oil Pipeline Act of 1990. In other words, not only under the Nigerian law but also under the Oil Pipeline Act of Nigeria.There could be a case made to try and also seek judgment under common law.
But on this particular case, the judge was unequivocal, and he said clearly, yes, only the Oil Pipeline Act applies. I will come back to you with the relevance of this because the other issue that was brought where common laws would have applied.