ADVISORY: please take your time to read thru these “collections” of online journalistic reports culled for your informative delight so that you can be able to make informed an judgment on whether to support or partner with our noble cause or not…
Delta State Farmer Wins Suit Against Shell in Netherlands
It’s big news. For the first time, Shell has been found guilty in a court outside of the country in which it inflicted damage; in this case, in a court in the Hague for an oil spill in Nigeria. Shell will be forced to pay compensation to a farmer whose land and livelihood was ruined by the spill. This might seem a small step and a long time coming but it is very significant because it could open the floodgates to similar cases and bodes well for cases against Shell in the US Supreme Court and UK High Court for crimes committed in Nigeria. The cost to Shell is incalculable and should be enough to rattle investors and may even force change at the highest levels of the company. As Andy Rowell pointed out in his blog for Oil Change International, “this is the first time a multinational has been held accountable for the actions of its subsidiaries in its home nation.”
This is truly a David vs Goliath moment. Congratulations should go out to Environmental Rights Action and Friends of the Earth Netherlands who supported this case and to the farmers that had the courage to stand up to Shell. This win cannot right all the wrongs that Shell has done in the Delta and amidst the sense of victory it’s important to remember that Shell are still operating in ways that seriously impact communities and ecosystems in the Niger Delta.
Nigeria-based Environmental Rights Action pointed out the environmental-racism inherent in companies like Shell operating to very different pollution standards in countries like the Netherlands vs Nigeria.
While we commend the Dutch court ruling, it is now time the western countries pass laws compelling companies to enforce the same environmental responsibility standards abroad as at home. Shell’s arguments in the face of incontrovertible evidence has again shown the double standards of the oil companies in treating spills incidents in Nigeria differently from their pollution in Europe or North America. We are still optimistic that this landmark judgment will instigate more communities to seek justice.
Shell has tried to claim that its ‘issues’ in Nigeria are a thing of the past, but John Vidal wrote in the Guardian yesterday that in his trip last week to the Delta, people were telling him that if anything, the pollution was getting worse. One person told him:
Spills in the US are responded to in minutes; in the Niger delta, which suffers more pollution each year than the Gulf of Mexico, it can take companies weeks or more.
An interesting aside to this is the way that this was reported on the BBC – the initial headline on the article of Shell ‘partly blamed’ for damage was very quickly changed to Shell in Nigeria: Court acquits firm on most charges and Shell not culpable over spills, presumably after Shell’s lawyers making some phone calls to the right people high up the BBC food chain. It’s an incredibly political act of headline editing when you think that the ruling in favour of one of the farmers represents a historical legal precedent, but what the BBC headlines is that Shell are largely in the clear.
But today reminds us that with people power we can win even when the odd are stacked against us. Shell guilty…keeping saying it and believing it.
I wanted to add a postscript today as there has been so much conflicting media coverage of the verdict since writing this post. I think that this is mostly because Shell has been successful in using the complexity of the legal situation to dominate the media narrative. It is true that only one of the cases brought forward was successful and that the parent company Shell was not found liable in this case but its subsidiary The Shell Petroleum Development Company of Nigeria Ltd of which the parent company owns 100% of its shares. However, when you consider the odds stacked against the Nigerian farmers and the fact that this is the first successful case of its kind it’s difficult to see this as anything other than a victory and the first of many. The tide is indeed turning.
NIGER DELTA: FG, NNPC CAN BE SUED BUT NOT SHELL, ELF, CHEVRON & TOTAL –
RULES ECOWAS COURT
Article culled from: http://www.serap-nigeria.org
The ECOWAS Community Court of Justice in Abuja has held that it has jurisdiction to entertain a case brought by the Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) against the Federal Government and six oil companies over alleged violation of human rights and associated oil pollution in the Niger Delta.
However, while the Court held that the Nigerian government and its body, the Nigerian National Petroleum Corporation (NNPC) can be held accountable for human rights violations in the Niger Delta, the Court declined jurisdiction against Chevron Oil Nigeria PLC; Shell Petroleum Development Company (SPDC); Elf Petroleum Nigeria Ltd; Exxon Mobil Corporation, Agip Nigeria PLC; and Total Nigeria PLC.
In the ruling number ECW/CCJ/APP/07/10 delivered on the UN Human Rights Day, 10 December 2010, the Court held that, “The Federal Government of Nigeria signed the ECOWAS Treaty as well as other community instruments like the Protocols on Democracy and Good Governance and on the Competence of the Community Court of Justice. Therefore, there is no doubt with respect to the jurisdiction of the Court to adjudicate any case of alleged violation of human rights that occur in the Federal Republic of Nigeria, and for which it should be held accountable.”
The Court’s decision followed preliminary objections filed by the defendants against the suit number ECW/CCJ/APP/08/09, filed and argued by SERAP counsel, Femi Falana, Adetokunbo Mumuni and Sola Egbeyinka.
Mr T.A. Gazali represented the FG; while Mr Dafe Akpedeye, SAN represented the NNPC; Professor F. Oditah QC, SAN represented Shell; Mrs M.A. Essien, SAN, represented ELF and Exxon Mobil; Mark Mordi represented Agip Nigeria PLC; N.A. Idakwuo represented Chevron PLC; and F.R. Onoja represented Total Nigeria PLC.
On the argument by the NNPC that SERAP filed the action on behalf of the people of Niger Delta who is not a person known to law, and therefore cannot sue or be sued, the ECOWAS Court held that, “The consideration made about the Niger Delta region or people from Niger Delta as a non-existing entity is based on the assumption that the action is a representative one, that is, the application was filed on behalf of people from Niger Delta. That assertion is, however, wrong because SERAP is not the people from Niger Delta but a non-governmental organization acting on its own without claiming to represent anyone else”.
Also, on the argument by Shell that SERAP is not a person under Nigerian law, the ECOWAS Court held that, “What emerges from the evidence produced before the Court is that SERAP is an entity duly and legally registered under the Companies and Allied Matters Decree 1 of 1999 of Nigeria. SERAP’s legal capacity was admitted by this Court in a previous case the organization filed against the Federal Republic of Nigeria and Universal Basic Education Commission. Consequently, the Court holds that SERAP is a legal entity duly constituted.”
The Court also held that, “With respect to the alleged lack of LOCUS STANDI by SERAP, the analysis of the Court firstly relies on the nature of the dispute brought before it for adjudication. In fact, the application is related to the alleged violation of the human rights of the people who inhabit the region of Niger Delta.
The framework presented in the application is not only of violation of an individual’s rights, but of rights of entire communities as well as environmental devastation without sufficient and protective intervention from public authorities. There is a large consensus in international law that when the issue at stake is the violation of rights of entire communities, as in the case of the damage to the environment, the access to Justice should be facilitated.”
“Taking into account the need to reinforce access to justice for the protection of human and people rights in the African context, the Court holds that an NGO duly constituted according to national law of any ECOWAS Member State, and enjoying observer status before ECOWAS institutions, can file complaints against human rights violation in cases that the victim is not just a single individual, but a large group of individuals or even entire communities.
Thus, in considering the social purposes of SERAP, and the regularity of its constitution it does not need any specific mandate from the people of Niger Delta to bring the present lawsuit to the Court for the alleged violation of human rights that affect people of that region,” the Court added.
But the Court insisted that the multinational corporations cannot be sued before it. The Court said: “One of the most controversial issues in International Law is the accountability of Companies, especially multinational corporations, for violation or complicity in violations of human rights especially in developing countries. In fact, one of the paradoxes that characterizes international law presently is the fact that States and individuals can be held accountable internationally, while companies cannot.”
Although the Court cited the progressive work of the UN High Commissioner for Human Rights in her Report on Corporate Responsibility and the Committee on Legal Affairs of the European Parliamentary Assembly in its Report on Human Rights and Business, and the Special Representative of the UN Secretary General Report titled: Protect, Respect, and Remedy: A Framework for Business and Human Rights, the Court nonetheless said that it could not exercise jurisdiction over the multinational corporations because they are not parties to ECOWAS treaties.
The Court said: “Despite this development, the bare truth, however, is that the process of codification of international law has not yet arrived at a point that allows claim against corporations to be brought before international courts. Any attempt to do so have been dismissed on the basis that Companies are not parties to the treaties that international courts are empowered to enforce. This understanding is widely shared among regional courts with jurisdiction over human rights.”
“That being the current situation at the international level, the only available alternative left to those seeking for justice against corporations has been domestic jurisdictions. But it is worthy to leave clear that even in the US, notwithstanding a few decisions supporting corporate liability, a recent ruling from the 2nd Circuit in Kiobel v Royal Dutch Petroleum Co held that Alien Torture Act does not authorize jurisdiction to hear claims against corporations. The Court stands by its current understanding that only Member States and Community Institutions can be sued before it for alleged violation of human rights,” the Court further ruled.
It would be re-called that SERAP’s case dated 25 July 2009, had alleged “Violations of the right to an adequate standard of living, including the right to food, to work, to health, to water, to life and human dignity, to a clean and healthy environment; and to economic and social development – as a consequence of: the impact of oil-related pollution and environmental damage on agriculture and fisheries; oil spills and waste materials polluting water used for drinking and other domestic purposes; failure to secure the underlying determinants of health, including a healthy environment, and failure to enforce laws and regulations to protect the environment and prevent pollution.”
But in separate preliminary objections filed before the Community Court of Justice in Abuja the defendants asked the Court to dismiss the suit with substantial costs.
But SERAP argued that: “Multinational corporations have obligations under international law not to be complicit in human rights violations. Multinational corporations must not perform any wrongful act that would cause human rights harms; must be aware of their role not to provide assistance or any support that would contribute to human rights violations; and must not knowingly and substantially assist in the violation of human rights.”
ECUADOR MINISTER TO APOLOGIZE PUBLICLY TO INDIGENOUS PEOPLE OVER OIL PROJECT
Justice Minister Ledy Zuniga to Offer Apology in Ceremony Wednesday
Sept. 30, 2014 4:48 p.m. ET
QUITO, Ecuador—Justice Minister Ledy Zuniga will offer a public apology to a community from the Sarayaku indigenous group on Wednesday over the development of an oil project in their ancestral lands almost two decades ago, which an international court said was a violation of their rights.
“This is a great step forward for the indigenous peoples’ battle to defend their rights and their ancestral lands,” Felix Santi, the head of the Sarayaku people, said in an interview. “This day will be recorded in the memory and the history of the Kwichua people.”
The Kwichua community of Sarayaku is located in the Ecuadorean Amazon in Pastaza province.
The apology will be offered by Ms. Zuniga in the Kwichua language and Spanish in a public ceremony at the Sarayaku’s central plaza. Three other ministers, including Environmental Minister Lorena Tapia, are expected to attend.
But observers say the apology won’t do much to defuse potential conflicts between indigenous peoples and companies that want to explore for oil in the Amazon.
“New conflicts can still arise with new oil projects, especially in the southeast as under the current law the government is obliged to carry out prior consultation, but results are not binding,” said Fernando Santos, a lawyer who works in the oil sector. “That means that although there may be community opposition, the government can develop projects.”
In July 2012, the Inter-American Court of Human Rights ruled that Ecuador must apologize, consult, and compensate the Sarayaku community for violating their rights with the development of the Block 23 concession in Pastaza. It also said the government must accelerate the safe removal of 1.4 tons of explosives that an oil company left in their land.
In 1996, during the government of conservative President Sixto Duran Ballen, Argentina’s Compania General de Combustibles obtained a license to develop Block 23. About 60% of the land belongs to the Sarayaku community and the remaining to other indigenous groups.
The court said that Ecuador didn’t seek consent from the Sarayaku community in accordance with international standards.
The court said this was a violation of the Sarayaku’s rights, including its cultural identity and indigenous communal property.
THE SARAYAKU POPULATION TOTALS ABOUT 1,200.
LAST YEAR, THE SARAYAKU PEOPLE RECEIVED COMPENSATION OF $1.4 MILLION.
Since the 1980s, it has publicly fought against oil activity in its territory.
The community sued Ecuador’s government in 2003.
But the government still needed to remove the explosives left in the land.
“This is the first time that a Latin American state has gone to an indigenous community to offer apologies for something it did poorly,” said Mario Melo, a lawyer for the Sarayaku community. “This could be an example for other communities not only in Ecuador, but the entire region.”
Write to Mercedes Alvaro at firstname.lastname@example.org
FLY THE FLAG OF FREEDOM!!!