Justice! Landmark judgment against Shell opens floodgates to hold companies accountable

C: Milieudefensie

It is now twenty six years since the Nigerian activist, Ken Saro-Wiwa and eight other Ogoni were murdered by the Nigerian military for their campaign against the oil giant Shell.

Ken and other others had campaigned against Shell’s endemic pollution of Ogoni and the company’s environmental racism and double standards of operations. They campaigned for clean air and water and self-determination. They paid the ultimate price.

In his powerful, defiant closing speech to the sham military Tribunal just before he was hung, Ken said: “I and my colleagues are not the only ones on trial. Shell is here on trial and it is as well that it is represented by counsel said to be holding a watching brief. The Company has, indeed, ducked this particular trial, but its day will surely come…The crime of the Company’s dirty wars against the Ogoni people will also be punished.”

And last Friday, in an historic judgement, Shell’s day finally came. The oil giant, that has tried to wriggle like a frightened African snake out of its responsibilities for its dirty, endemic pollution, ran out of places to hide.

At the end of last week, a Dutch court ordered that Shell’s Nigerian subsidiary pay compensation for oil spills in the Niger Delta that stretch back decades. Do not underestimate this moment.

The case, like so many against Shell has been a legal slog. It started back in 2008, when four Nigerian farmers sued Shell for leaking pipelines on their land. Their case was being assisted by Milieudefensie (Friends of the Earth Netherlands). It was first logged in 2008.

Last year, writing about the case, I said: “It is unforgivable that the case has dragged on for so long, that two of the plaintiffs have died during the intervening years. Shell playing every devious legal trick in the book, tried to argue the case should not be heard in the Dutch courts. The oil giant tried to delay the legal action, just like it has delayed action on climate change.”

But Shell could run no more. The court ruled that, in particular, Shell Nigeria is liable for oil pollution at three locations in the Delta, and that the parent company Royal Dutch Shell also violated its duty of care.

In the landmark ruling three of the four original plaintiffs and their fellow villagers must now be compensated for the damage caused.

The significance of the ruling cannot be overstated. As Milieudefensie noted after the judgement: “It is the first time that a court has held Dutch transnational corporation accountable for its duty of care abroad.”

The result was welcomed with widespread joy. Eric Dooh from Goi, one of the four Nigerian plaintiffs said: “Finally, there is some justice for the Nigerian people suffering the consequences of Shell’s oil. It is a bittersweet victory, since two of the plaintiffs, including my father, did not live to see the end of this trial. But this verdict brings hope for the future of the people in the Niger Delta.”

The President of MOSOP, the Movement for the Survival of the Ogoni People, Lazarus Tamana, expressed his “delight” to me, adding the “success of the case is an excellent one fo the communities of the Niger Delta.” He added that “With this judgement, it’s clear that the people of the Niger Delta are beginning to hold Shell to account for the crime committed in the region.”

The plaintiff’s lawyer, Channa Samkalden, told me that “this is the outcome we have always hoped for. At last it has been established that my clients are entitled to compensation.”

“In addition, a great step has been taken with the courts acknowledgement that the Shell headquarters in the Netherlands have a role to play,” said Samkalden. “They must see to it that a leak detection system is installed, in order to prevent further damage. This is a great step to justice and a great comfort to many suffering from oil pollution in the Niger Delta.”

Others reacted to the judgement on Twitter:

Shell must pay, says the Dutch Court. Their day has come!#RememberSaroWiwa https://t.co/PPz6zlKnwO

— Nnimmo (@NnimmoB) January 29, 2021

🎉BREAKING! The Dutch court has ordered @Shell to pay farmers in Nigeria for the damages caused by oil spills ✊🙌

After 13 years, justice!https://t.co/DjMAhnOq74

— Friends of the Earth Europe🌍 (@foeeurope) January 29, 2021

What should not be underestimated is that the case could also open the floodgates to holding companies like Shell accountable for their actions.

Still reading, but one thing is clear: Court of Appeals The Hague is the first court to establish a common law duty of care on a parent company towards claimants in third states (case C+D, paras. 7.24-7.29). That ís major.

— Lucas Roorda (@LRoordaLaw) January 29, 2021

Lazarus Tamana also notes that MOSOP was now “expecting more cases to be brought to London and the Hague to drive home our point that polluters must pay a price for pollution”.

Donald Pols, director of Milieudefensie said the case serves as a warning “for all Dutch transnational corporations involved in injustice worldwide.”

“Victims of environmental pollution, land grabbing or exploitation now have a better chance to win a legal battle against the companies involved. People in developing countries are no longer without rights in the face of transnational corporations,” said Pols.

The ruling also builds pressure on the Dutch courts for the next legal ruling due in May, which could hold Shell to account for “wrecking the climate”.

For now, though, for everyone who has worked on the case against Shell, let us savor this victory. In doing so, let us remember the colleagues and friends that should have been here to witness this moment too.

This victory also belongs to Ken Saro-Wiwa and eight other Ogoni activists — Saturday Dobee, Nordu Eawo, Daniel Gbooko, Paul Levera, Felix Nuate, Baribor Bera, Barinem Kiobel, and John Kpuine who were murdered on that fateful day in November 1995. Without their courageous activism, it would have been harder for others to follow suit. Hopefully now they can begin to rest in peace. They certainly rest in power.

I close my eyes to remember them. To think what this means for the Ogoni. Suddenly my tears flow. They are of victory. They are of sorrow. They are bittersweet. I think of all the others who should have been here too. I think of Ken Wiwa, of Claude Ake, of Oronto Douglas. I think of all the bloodshed, tears, anguish and multi-generational pain that the people of the Niger Delta have suffered because of Shell. I think of one of Ken’s poems.

“Dance your anger and your joys,
Dance the military guns to silence,
Dance oppression and injustice to death,
Dance my people,
For we have seen tomorrow
And there is an Ogoni star in the sky.”

After Friday’s ruling, you know that the Ogoni star shines brightly in the dark night sky.