By: John Donovan
28 April 2014
An historic legal hearing will begin on 29th April 2014 which will hear evidence from the UK lawyers representing 15,000 Nigerian fishermen from the Bodo community against oil giant Shell in a hearing which will determine the key legal issues to be considered in one of the largest ever environmental law cases which is due to take place in May 2015.
The ‘preliminary issues hearing’ will be the first time Shell have 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, in the High Court will consider the key legal issues in the case ahead of the full trial due in May 2015.
Amongst the issues to be considered will be whether Shell can be held to account 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, the law firm representing the Bodo Community, argue that under the Oil Pipelines Act 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 will argue 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 also 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.
Leigh Day will claim that Shell has acted in an ‘outrageous manner’ in relation to the pipeline and will ask the Court to consider punitive damages against Shell.
According to Martyn Day the lawyer from Leigh Day representing the Bodo Community, if the Court agrees that such damages can be awarded “it will act as a strong deterrent to all oil companies operating in the Niger Delta who may consider profit before the impact on the communities in which they operate.”
The London based law firm will also argue on behalf of the community that they should be able to claim for all the non-financial losses the Bodo community has suffered as a result of the devastation caused to their local environment by the oil spills that took place in 2008.
As a fishing community that relies on the waterways of the Creek they are already claiming a loss of livelihood but, beyond that, the creek is the cement that keeps the community together.
The community argues that the devastation caused by the oil, and the failure to clean it up, has led to many community problems that all members of Bodo have had to endure.
Martyn Day from law firm Leigh Day, who is representing the 15,000 claimants, explained:
“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 be decided 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, 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’.
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  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  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.
 Water quality of Bodo Creek in the lower Niger Delta basin, American-Eurasion Network for Scientific Information 
 Post-Impact Ecological Assessment study in conjunction with the Centre for Environment, Human Rights and Development by Ecoland Resources Limited.
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