Legal Action as Resistance

The problems around oil extraction and pollution in the Niger Delta are deeply rooted in the colonial history of Nigeria. As a former British colony, Nigeria has a multi-ethnic society and is reputed to be the most populous Black nation. It was through the British colonial enterprise that the sub-Saharan African nation came about as a nation-state. Through violence and subjugation, colonial Britain welded the various social formations (ethnic groups) together to form the Nigerian state. After a series of agitations and negotiations spanning nearly 60 years, the country became self-governing in 1960.

The events leading up to the formation of the Nigerian state and ultimately self-rule did not occur without contradictions in the development of the country.

Beyond the political domination of some ethnic groups by others, it is control over the commanding heights of the Nigerian economy by British colonial economic interests and their local collaborators that still affects the country’s economic structure to the present day. By 1937, the colonial government had given Shell D’Arcy exclusive concessionary rights and unlimited access to explore for oil across Nigeria. Shell D’Arcy had been founded as a subsidiary of the British Petroleum Company, and operated under the name Royal Dutch Shell in Nigeria. Its early attempts at oil exploration met with limited success, and it was not until 1956 that oil was discovered in commercial quantities at Oloibiri in the Niger Delta in present-day Bayelsa State.

This development heightened Nigeria’s economic fortunes, brought it into the international limelight, and caused a rush among international oil companies seeking to participate in the oil business in the Niger Delta region. In 1957–58, serious oil exploitation activities started in various communities in that part of Nigeria, then part of the country’s old Eastern Region. Hence, the shipment of petroleum products to Europe and the enormous revenue it brought into Nigeria formed an integral part of the country’s political economy before political independence in 1960.

From the Slave Trade to Palm Oil

It is not entirely correct to say that oil exploration and exploitation activities brought the Niger Delta region into the national and international limelight. The Niger Delta region came to prominence centuries earlier, prior to the arrival of European oil corporations in the region. It played host to European slave merchants engaged in the trade in human cargo in the sixteenth century.

Upon the abolition of the slave trade, the region encountered various European trading companies such as United African Company, John Holt, Michelin, Lever Brothers, etc., all scrambling for raw materials, particularly palm oil, to satisfy the industrial needs of Europe and to dispose of finished goods, using the Niger Delta waterways to reach the rest of Nigeria and other parts of West Africa.

As defined by the Nigerian government, the delta covers over 70,000 square kilometres, up to 7.5 percent of Nigeria’s land mass. It extends nearly 240 kilometres from north to south, covering about 320 kilometres of the Nigerian coastline. The region is made up of the states known as Rivers, Akwa Ibom, Bayelsa, Delta, Cross River, Ondo, Edo, Abia and Imo — all political administrative units within Nigeria’s 36-state federal structure and located in the South-South and South-East geopolitical zones.

The region is home to many ethnic groups, such as the Ijaws, Ogonis, Ikwerres, Igbos, Urobos, Itsekiris, Efiks, Ibibios, Anangs, and Benins, among others. It has an adoring mangrove forest and a very rich habitat with flourishing flora and fauna, as well as rivers and water bodies that are home to different aquatic animals and fertile ground for agricultural production. The inhabitants of the region are mostly fishermen, craftsmen, and farmers. Prior to oil exploration, there was no history of environmental degradation or abuse in the region.

The Bloody History of Oil Exploration

The history of oil exploration in the Niger Delta from 1956 to 2023 has been chronicled and catalogued in conflicts, bloodletting, gas flaring, oil spillage, and the deaths of members of the various local communities through oil pollution, disequilibrium, disarticulation, destruction, disorientation, and disaggregation of the traditional economy. For the Nigerian state, it brought affluence, soaring political corruption, a lack of political accountability in governance, and enough revenue to sustain the national state, the corrupt ruling class, and their international allies and collaborators.

Oil exploration is central to the Nigerian political economy; it is the country’s greatest export earner, contributing up to 98 percent of Nigeria’s foreign trade revenue and 37 percent of the country’s gross domestic product (GDP). No oil money, no Nigeria. In fact, oil and petroleum products are mentioned in the exclusive legislative list of items in the constitution of the Federal Republic of Nigeria, and only the federal government can legislate on them.

Central to oil exploration in the Niger Delta region are the international oil companies, their home governments that shape international politics, the Nigerian government, local oil companies like the Nigerian National Petroleum Company Limited (NNPC), and, lately, militant groups, oil thieves, and the Nigerian state’s coercive structures, like the army, police, and the Nigerian Security and Civil Defence Corps (NSCDC).

First among the oil companies operating in the Niger Delta is Shell: first as Shell D’Arcy, later as Royal Dutch Shell, and presently under the name Shell Petroleum Development Company of Nigeria Limited (SPDC), with its parent company based in the Netherlands. This company began oil exploration activities in Nigeria in the 1930s and controls over 30 percent of Nigeria’s oil production; it has the largest share of concessionary rights to oil exploration and exploitation in Nigeria. In the Niger Delta, it has oil wells, flow stations, and oil facilities across many communities, with its oil pipelines dangerously criss-crossing the entire region. Shell Petroleum Development Company practically sets government oil policy in Nigeria.

Owing to the linkages between international oil companies (particularly SPDC) and Nigeria’s government and ruling class, as well as political corruption and weak regulatory institutions, it is often difficult if not impossible to hold the oil companies accountable for the various forms of abuse they perpetrate against the natives of the Niger Delta region.

Given the lack of easy access to justice and Nigeria’s chaotic and dysfunctional legal system, which has a reputation for corruption and compromise, the oil-bearing communities in the Niger Delta resorted to self-help in the form of violent agitation to compel the oil companies and the Nigerian state to change their policies and operational modalities.

Given the magnitude of the oil spills, the oil-bearing communities started fighting for their lives and seeking remedies against oil pollution and general environmental degradation.

This started in late 1990s when groups like Ijaw National Congress was founded. According to the Nigerian Constitution and several laws, all land and all mineral resources belong to the state. Using its enormous powers, the colonial government, the forerunner to the contemporary Nigerian federal government, granted concessionary rights to Shell in 1937 to commence oil operations on native lands. In response to agitation by the natives, the government employed coercion and repression to compel their compliance so that it could grant access to their communities for oil operation.

This hostile disposition towards the oil-bearing communities on the part of the government and the oil companies, coupled with human right abuses, explains the entire history of public interest litigation and lawsuits against Shell as a form of resistance in the Niger Delta.

Polluted Lands

Oil exploration in the Niger Delta region of Nigeria comes with a high level of environmental pollution in the form of crude oil and the associated gas, drilling fluids, and other residues of oil exploration and exploitation. The problem of oil pollution in the region cuts across all communities where oil activities are carried out and the entire geographical space of the region.

The first major instance of oil pollution by Shell was in Ogoniland in Rivers State, an oil-bearing community along an estuary leading to the Atlantic Ocean. The pollution occurred in 1970, when an oil spill at a Shell facility in the Bomu oil field resulted in disastrous consequences for the community in Bomu and its surroundings.

Other major spills are the Bodo oil spill in 2008, the Goi oil spill starting in 2004, the Ogale oil spill, and the Ejama oil spill in Ogoniland, as well as the notorious 2011 gas explosion in a Chevron Rig in Bayelsa State, which led to land and water pollution and lost lives. As with the Ogoniland oil exploration, Shell’s activities and oil spills from its facilities have made life miserable for oil-bearing communities in the Niger Delta, resulting in lost livelihoods, environmental degradation, poverty, cycles of violence, and death.

In a 2011 report, the United Nations Environmental Programme exposed severe land, water, and air pollution in Ogoniland, one of Shell’s early host communities. The report stated that 40 different oil spillages over a period of 23 years resulted in the spilling of 13 million barrels of oil into different parts of Ogoniland. In the town of Ogale, in the Eleme community, it reported that the underground and surface water are so toxic and polluted with oil that it is brownish, stinks of sulphur, and is not fit for any form of human consumption.

It may be worse in some other communities in the Niger Delta region, where oil spills go unreported or under-reported.

Given the magnitude of the oil spills, which often occur day and night in the case of gas flaring and leakages from weak company facilities, combined with oil theft and illegal oil bunkering by oil thieves and the security agents guarding oil facilities, the oil-bearing communities started fighting for their lives and seeking remedies against oil pollution and general environmental degradation. Their agitation started intensely in the year 2002 and lasted for about eight years.

Fighting Back

At first, there were attempts at armed struggle in 1966 by Adaka Boro, a graduate of the University of Nigeria in Nsukka and an ex-police officer who led a seven–day armed struggle against the federal government and the oil companies. This was promptly suppressed by the Nigerian military regime under Johnson Aguiyi-Ironsi, an army general who took over the government after the 1966 military coup.

Across the region, many rural and urban communities have taken out writs against the oil companies and regional and national governments.

Other attempts at armed struggle against Shell and the Nigerian government involved the Ijaw Youth Congress, the militant wing of Ijaw National Congress, an umbrella association for Nigeria’s Ijaw ethnic nationality. Led by Alhaji Asari Dokubo, the youths challenged the legality of oil company operations on Ijaw lands without the consent of the Ijaw people, the environmental damage and pollution of Ijaw land, and the corruption associated with the distribution of oil revenue among the country’s states and ethnic formations. They argued that the largest ethnic groups, the Igbo, Hausa, and Yoruba, were undermining oil revenue distribution to the minority groups in the Niger Delta, which bear the brunt of oil production.

By the 1990s, there were uprisings against oil companies, particularly Shell, in Ogoniland, Umuechem in the Etche Local Government Area, and Rumuekpe in the Emouha Local Government Area, all of which are in Rivers State. Other communities were to follow the trend shortly.

Around December 1992, the Ogonis in Rivers State, led by activist Ken Saro-Wiwa and operating under the umbrella organization Movement for the Survival of Ogoni People (MOSOP), started resisting Shell because of the gas flaring and oil spillage in their communities. The company fought back, and the conflict escalated on both sides. MOSOP issued threats and ultimatums to Shell, the Nigerian Government, and the NNPC, demanding 10 billion US dollars for royalties and compensation for the years of oil exploration and environmental pollution in their communities.

On 10 November 1995, nine frontline environment activists (later known as the Ogoni Nine) were murdered by the Nigerian government, an action that drew international condemnation. The government banned MOSOP and other groups in the region that were campaigning against the environmental abuse by Shell and other oil companies.

However, instead of deterring them, this development instead spurred other Niger Delta communities that were faced with oil exploration and pollution to rise up in protest against Shell and other oil companies, leading to a near total shutdown of oil exploration in Nigeria by 2005. In 2009, Shell Petroleum Development Company agreed to pay 9 million British pounds in a court settlement after a lawsuit was filed, which accused the company of collaborating in the killing of the Ogoni Nine, oil pollution in Ogoniland, and human rights violations.

MOSOP, however, had declared Shell persona non grata in Ogoniland, leading to the shutdown of all Shell operations across Ogoni territories. This remains in effect to the present day.

Offshore Litigation as an Alternative

One might assume that the 1995 execution of Ken Saro-Wiwa and others for their advocacy and for provoking international condemnation of Shell and its activities in Ogoniland and the Niger Delta would have thoroughly scared the local oil-bearing communities in the region. However, a broader analysis reveals that it prompted them towards further agitation instead, albeit with a different outlook and without resorting to violent activity, as a form of resistance after the failed attempts that resulted in the loss of many lives and the destruction of many communities in encounters with the Nigerian security agencies.

Hence, local communities resorted to seeking justice in the courts, which proved abortive in Nigeria in most cases. Consequently, by late 2000, offshore litigation became popular for the natives of the Niger Delta: they continued to file lawsuits in Nigeria, but also in other countries as well, mostly the oil companies’ home countries, particularly the Netherlands and the United Kingdom.

With the aid of activists, human rights advocates, and non-governmental organizations, the natives first opted for litigation both locally and internationally as a tool of resistance, but found out that offshore lawsuits were the most profitable in terms of awards, time saving, and cost effectiveness, and were less prone to manipulation and Nigerian state influence, with a much greater capacity to deliver justice than the Nigerian courts.

In 2012, community members in Bodo, an Ogoni community in Rivers State, filed a lawsuit in London against the Shell Petroleum Development Company (SPDC) over oil spills from Shell facilities in their communities in 2008 and 2009. In the suit, Bodo Community and Others vs. SPDC, they argued that leakages from a Shell pipeline, which was about 45 years old at the time, spilled crude oil in their community, causing great loss to the environment and people’s livelihood. Shell, they argued, was reacting slowly to their call to stop the spillage, resulting in wider damage, as timely intervention on the part of the company would have limited the scale of environmental destruction.

On 20 June 2014, the court ruled that Shell could be held responsible for the spillage because it had failed to take reasonable care of its pipeline and facilities. In January 2015, Shell accepted responsibility for the spillage and opted for an out of court settlement, paying 55 million British pounds in compensation to the affected community. The Bodo case was one of the first major success stories involving lawsuits as an instrument of resistance against the oil giant Shell in the Niger Delta region. The success of this suit encouraged other communities to follow the same path.

The people of Goi, an Ogoni community in Rivers State, also brought an action against Shell for four oil spills between 2004 and 2007 that heavily impacted the communities of Goi, Oruma, and the Ikot Ada Udo community in Akwa-Ibom State. The suit, filed in The Hague, Netherlands, was settled on 29 January 2021, when the Court of Appeal in The Hague ruled that Shell should not only pay compensation for damages to the Goi farmers and others affected by the spillage, but also obliged Shell to carry out intensive clean-up work in the affected communities.

Success stories that have been recorded so far in local and international courts serve as encouragement for local communities to seek further legal redress against Shell, other oil companies, and even the Nigerian government.

The villages of Ejama and Ebubu in Ogoniland’s Eleme community received compensation from Shell. The oil spillage that case dealt with occurred in 1970, but the lawsuit was filed in 1991 in a Nigerian court and lasted nearly three decades. In 2010, a Federal High Court ordered Shell to pay 17 billion naira (about 21 million euros at the time of publication) to the claimants for polluting their community and farmland. Shell appealed the Federal High Court’s ruling up to the Supreme Court of Nigeria, however that appeal was dismissed in 2020 when the Supreme Court upheld the prior decision and ordered Shell to pay the compensation to the communities.

In a related development, on 14 November 2005, Chief Jonah Gbemre sued Shell, the Nigerian National Petroleum Company, and other oil companies operating in the Niger Delta over gas flaring in Iwherekan villages. The suit asked the court to order Shell and other oil companies to end gas flaring in the area.

On 14 November 2005, the court issued a well-considered judgment stating that Shell’s pollution violates the constitutionally guaranteed right to a clean, poison-free, and pollution-free community environment, and that continuous pollution in the community through gas flaring violates the people’s right to the dignity of the human person as provided under sections 33 and 34 of the Constitution of the Federal Republic of Nigeria and articles 4, 16, and 24 of the African Charter on Human and People’s Rights.

A Practical Tool of Resistance

Apart from lawsuits against Shell and other oil companies over oil pollution in the region, the people of the Niger Delta have also found lawsuits and litigation to be a much more convenient instrument of resistance than violence and self-help. Across the region, particularly in Rivers State, many rural and urban communities have, at different times within the last two decades, taken out writs against the oil companies and regional and national governments, including on issues other than oil pollution.

For instance, the waterfront communities of Njamaze, Abonima Warf, and Eagle Island in Rivers State, which are mostly occupied by the urban poor, have gone as far as the Economic Community of West-African States (ECOWAS) Court of Appeal to assert their rights to housing. In doing so, they challenged the Rivers State government over the demolition of their houses and forceful acquisition of their lands along the Port Harcourt waterfront by the oil companies, the state government itself, and private real estate developers. The move was meant to challenge the absurdities of the earlier rulings by the Nigerian domestic courts in cases brought against the Rivers State government and the federal government over deprivation of their right to housing.

The move towards the courts shows a shift in the paradigm and philosophy of resistance from the era of a militant worldview towards more civil conduct in the struggle for community’s rights through the courts.

Flight to Offshore Exploitation

Shell Petroleum Development Company is the biggest oil company, the company with the greatest interest in the oil exploration business in the Niger Delta region of Nigeria, and the biggest polluter in the region. It is impossible to talk about the Nigerian oil industry without mentioning Shell. The company has made billions of dollars in profits over years of operations in the region, yet the natives and host communities live amid poverty, environmental degradation, and serial human rights violations.

Across the Niger Delta region, local and international litigation will continue to be part of the people’s resistance to Shell in the future. The natives of the Niger Delta have discovered that lawsuits are an instrument for resisting oppression from the oil giant Shell and other international oil companies operating in the region.

Success stories that have been recorded so far in local and international courts serve as encouragement for local communities to seek further legal redress against Shell, other oil companies, and even the Nigerian government, which owns a 55 percent equity share in all oil exploration activities. This development has made Shell reconsider its mode of operation in the region — but more particularly, it has caused it to try to divest and relocate its operations to exclusively offshore oil production, in order to mitigate the liability, it has incurred in the region over the years.

The entire process is shrouded in its own controversy as the Niger Delta communities are not letting go easily. Currently several non-governmental organisations and community members in the region are kicking against Shell Divestment. They argue that Shell should live up to its obligations and pay for the years of environmental degradation and abuse. Many people are considering lawsuits from this direction. This is one indication that litigation as a form of advocacy has come to stay in the region.