This Indigenous Peoples’ Day, we are reflecting on the steadfast nonviolent struggle of the indigenous Ogoni people in Nigeria and the human rights and environmental abuse they have suffered at the hands of the Nigerian government and Shell (Royal Dutch Shell’s subsidiary Shell Petroleum Development Company of Nigeria (SPDC)).
Today, after three years of half-efforts to clean up the oil-soaked Niger Delta, sixteen years since Shell was run out of the Ogonilands, and decades of ceaseless calls for justice by indigenous Ogoni communities ravaged by contamination and repression, signs are pointing to a coming resurgence of oil drilling in the Ogonilands by the same players responsible for past destruction of the land. This post explores the new developments regarding who has legal rights to Oil Mining Lease 11, a massive area covering part of the Ogoni territory, the implications of exercising those rights, and how this impacts the indigenous Ogoni of the Niger Delta.
Many Ogoni people vehemently oppose the resumption of exploration and drilling on their lands without their consent, and without addressing the multilayered legacy of injustice that the Ogoni people have lived with since the Nigerian government and Shell stopped oil operations in the Ogonilands the last time around.
(See our previous posts on Shell’s legacy in Nigeria and international calls for a criminal investigation into the company’s complicity in human rights violations committed there.)
Despite the failure to provide reparations for past contamination (or clean it up) and political violence around oil extraction in the area, a pending lawsuit brought on behalf of the Ogoni people for an injunction against the issuance of drilling licenses (see more below), and the fact that extracting and burning fossil fuels is killing our planet, the Nigerian national government, state government officials, and Shell appear to be making not-so-subtle moves to resume oil drilling in the Ogonilands and secure their control of drilling operations and share of eventual profits.
Escalating violence and instability in the Ogonilands
I spoke with KorneBari Nwike, President of the Center for Accountability, Transparency, and Human Development (CATHUD)-- an oil industry watch group and CAL partner- about the developing situation in the Ogonilands.
Nwike said, “So far, there has been no drilling, but the government is preparing to do so by sending in the military and creating instability in the Ogonilands. The military occupation of the Ogonilands is ongoing, and this level of ‘insecurity’ and bribery has never been seen before in the Ogonilands.” He explained that there has been no engagement of the Ogoni people on the possibility of new drilling operations besides attempted one-off buyouts of community leaders.
The Ogoni people are reporting escalating state-sanctioned violence in the Ogonilands and rising instability and social tensions along with it, as public and private oil interests apparently lay the groundwork to resume drilling.
Since this spring, when a leaked presidential memo revealed the national government’s plans to takeover Shell’s operations in the Ogonilands (details below), Nigerian troops have been deployed to the Ogonilands. The deployment of Nigerian forces to the Ogonilands is worrisome in itself in light of substantiated rumors of the return of extraction, and historical patterns of military and police-backed extractive operations worldwide. But it touches a nerve in this context in particular since Nigerian soldiers, allegedly following instructions from Shell, murdered, raped, and otherwise attacked Ogoni activists who opposed oil extraction in the mid-1990s, contributing to the violence that caused more than 3,000 Ogoni people to flee to Benin as refugees. Leaders of the Movement for the Survival of the Ogoni People (MOSOP) claim that in the years after Shell halted operations in the Niger Delta, the military retaliated against indigenous human rights and environmental defenders with a campaign that resulted in the deaths of 2,000 Ogoni, 14 communities being “reduced to rubble” and “thousands flee[ing] into exile” across the world.
Nwike and others also report rising violence by private actors in the Ogonilands. Gangs allegedly funded by the oil industry are believed to be working for pay to divide and distract Ogoni communities before extraction begins. Fegalo Nsuke, leader of a MOSOP faction, asserts that the surging gang violence in the Ogoni areas of the state of Rivers is sponsored by oil interests that intend to “completely destroy the Ogoni social life with the hope that the people will become helpless and unable to resist any military intervention.” He has called for an investigation into the escalating violence in the area, alleging it “would uncover stunning revelations about oil industry sponsorship of crime in Ogoni.”
While tensions rise in the Ogonilands, Shell continues to use community surveillance, including “direct and GMOU surveillance” of Ogoni communities to “prevent crude theft and vandalism” of its pipelines and other equipment that remain in the Ogonilands (and frequently spill). Shell also publicly shares that it still “proactively engag[es] government security agencies” and “carr[ies] out awareness campaigns to educate community members, surveillance contractors and general public” to protect its property and interests in the Ogonilands. Shell’s surveillance is disturbing given the historical accusations against the company for complicity in the murders of Ogoni community members in the 1990s, known opposition to Shell’s presence on the Ogonilands, and the new reports of military and gang violence.
Who can operate on OML 11?
The Nigerian government and Shell began exploring and extracting oil in the Niger Delta in a joint venture in the mid-1900s. Historically, SPDC had a 45% stake in Oil Mining Lease 11 (OML 11), an area covering almost 2,000 square miles (3,095.25 kilometers) between the Nigerian states of Imo and Rivers. OML 11 covers 33 oil and gas fields, with the majority of oil fields located in the Ogoni areas of Rivers. Recent developments have sewn confusion over who would be in charge of drilling operations if they resume, and who has legal right to drill.
The Ogoni
In September 2018, the Registered Trustees of the Ogoni Liberation filed suit on behalf of the Ogoni people, seeking an injunction against Nigerian National Petroleum Corporation (NNPC), Nigerian Petroleum Development Company (NPDC), the Attorney General, and others to prevent the recognition of existing licences or granting/renewal of operating licenses on OML 11 until the “devastation created by SPDC as exposed by the [2008] United Nations Environmental Program (UNEP) report are carried out.” (Suit no. FHC/ABH/CS/1007/2018).
The Ogoni people contend that not only is the granting and selling of operatorship licenses improper while the Abuja High Court deliberates the case for an injunction, but that control over natural resources in the Ogonilands cannot be acquired or transferred by outsiders. The Ogoni are an autonomous indigenous people whom Nigeria never conquered and who have consistently demanded the state recognize their autonomy through a treaty. Furthermore, the Ogoni argue that the international human rights law principles of free, prior, and informed consent require the Nigerian government to involve the Ogoni people in every decision concerning the extraction of resources on their land.
The national government
In a March memo leaked to the public (letter reference number SH/COS/24/A/8540) and signed by President Buhari’s Chief of Staff Abba Kyari, the office of the president ordered NNPC to take over the SPDC’s share of OML 11. The memo directed the NNPC and subsidiary NPDC to “take over the operatorship from SPDC of OML 11 not later than 30 April 2019 and ensure smooth re-entry given the delicate situation in Ogoniland.” After the memo was leaked to the public, NNPC denied having received it and Shell declined to comment.
Shell
Although the March memo apparently revoked Shell’s operating authority over OML 11, in late August, the Federal High Court in Abuja ordered the renewal of Shell’s operating license on OML 11.
SPDC representatives sought approval from the High Court for the renewal of the OML 11 in May (Suit no. FHC/ABJ/CS/524/2019). Despite the fact that the injunction against license renewal is still pending and the fact that renewal of Shell’s license has been denied previously because of Ogoni opposition, Justice Taiwo Taiwo granted SPDC’s license renewal in what Ogoni chiefs claim is the fastest legal proceeding in Nigerian history.
Justice Taiwo Taiwo based his approval of Shell’s petition on paragraph 13(1) of the first schedule to the Petroleum Act, which he reads as requiring licenses to be granted to applicants that meet specified requirements. Interestingly, Shell asked for a license renewal ten years longer than the maximum available under the law (the Justice gave it the maximum of twenty), and OML 11 is nearly four times the maximum block size permitted under the national Drilling and Production Regulations. Justice Taiwo Taiwo renewed Shell’s license for the whole block, based on the fact that the company’s previous lease had been in existence before the size limitation regulations. Following the Petroluem Act apparently leaves no room for discretion to decline license renewals even to a company accused of gross human rights violations (including murder, rape, and torture) carried out during the term of its previous licensure.
This is not the first time that oil interests have ignored the pending litigation for an injunction. After the case was filed, attorneys for the Ogoni people informed the High Court that Defendants NNPC and NPDC has published a “re-entry plan” for oil drilling in the Niger Delta. In response, counsel for NNPC/NPDC sent a letter confirming that the state entities would not move forward with the “re-entry plan” or other preparations until the Court decides whether or not to grant the injunction.
In a September 26 letter, Ogoni chiefs and elders called on Nigerian President Buhari, who is also the Minister of Petroleum Resources, to urge Nigerian courts to stay action on the Shell’s judgment in (Suit no. FHC/ABJ/CS/524/2019) until final determination of the injunction question.
Rivers state
In another twist after the March memo called for a state takeover of SPDC’s OML 11 share and the High Court’s renewal of Shell’s operating license in August, Governor Nyesom Wike of the state of Rivers announced in late September that the state had “fully acquired” SPDC’s stake in OML 11. The Rivers state government is alleged to have played a role in the 1995 murders of Ogoni leaders.
A Shell spokesperson commented: “the announcement by the Rivers state government is in respect of the assets of SPDC which form part of a matter that is pending in court, for which reason we are unable to make further comment.”
Commenting on the Governor's announcement, Nwike said: “Shell will stop at nothing to go after what they want. It could be by crook, bribing or whatever method. Let's dissect the recent acquisition, where was the bid for the sale of OML 11 published. Do we have a list of bidders for this oil block? Why was the oil block suddenly sold to the Rivers State government when an Abuja court has granted judgement for the renewal of Shell Oil licenses?”
Notably, Rivers Governor Wike is not Ogoni but part of the Ikwerre tribe, the same tribe of Shell’s General Manager of External Relations. MOSOP has called on Governor Wike to support the Ogoni cause for justice and to use his role to contribute to a lasting solution to the crisis. The Ogoni people see the state’s apparent acquisition of OML 11 as a failure of the Governor to support the Ogoni people and an “attempt for Shell to skirt liability” by passing operatorship to a close ally.
Ogoni opposition
The Ogoni people are pushing back against the recent developments regarding OML 11 and the militarization of the Ogonilands. The Guardian: Nigeria reported, “…the Ogoni people are warning that any attempt to resume crude oil and gas production using the [government] takeover as a smokescreen, without addressing fundamental issues that led to the Ogoni struggle would be stoutly resisted.”
According to Nwike, even if it is the Rivers or Nigerian governments rather than Shell exploring and extracting oil in the Ogonilands, the Ogoni people have little faith that the government will respect their rights or protect the environment. “It’s an issue of trust,” he said. “In a relationship between two parties, when one side violates the trust, there has to be remorse or the trust will not be rebuilt. The Nigerian government has no remorse for how it has treated the Ogoni people in the past.”
Cleanup corruption
As it becomes more apparent that the Nigerian government and other actors intend to open the Ogonilands back up to oil exploration and extraction, it is also becoming more evident that the government’s clean up initiative for the Niger Delta is riddled with corruption.
In 2011, the United Nations Environmental Program (UNEP) released a report on contamination in the Ogonilands and identified multiple ongoing health and environmental hazards including astonishingly dangerous levels of benzene in Ogoni drinking water and called for a cleanup program of at least 30 years and $1 billion USD. Eight years later, the Ogoni people still drink contaminated water laced with carcinogens.
The Nigerian government only kicked off its cleanup program in 2016, establishing the Hydrocarbon Pollution Remediation Project (HYPREP) to implement the recommendations from the UNEP report. Since then, reports have blasted HYRPEP for incompetence, corruption, and lacking transparency. For example, almost all of the 16 companies awarded cleanup contracts have “no experience whatsoever in the remediation of oil spills.” In fact, most businesses awarded cleanup contracts are in industries like poultry farming, car sales, textile manufacturing, and palm oil production. None of the them meet HYPREP’s own minimum requirement of five years’ experience in hydrocarbon remediation.
Implications
The unfolding situation in the Ogonilands has major implications for the future of the Ogoni people and the Niger Delta. The resumption of exploration and drilling would not only further threaten the physical environment and more than one million people but would also undermine government and corporate accountability for abuse.
After human rights and environmental disasters caused by corporate and government actors, like the infamous case of Shell in Nigeria, it is not enough for reports to be written, clean up committees to established, or for companies to adopt unenforceable human rights policies or too-little-too-late corporate social responsibility programs.
While Shell claims that all of its operations are guided by the Universal Declaration of Human Rights, the International Labor Organization’s (ILO) core conventions and the UN Guiding Principles on Business and Human Rights (UNGPs), SPDC is still apparently seeking to reopen operations in the Niger Delta despite its egregious history there and continued Ogoni opposition. Corporate accountability requires more than aspirational adherence to UNGPs. We as an international community urgently need binding mechanisms to hold corporations accountable for past harms and prevent impending human rights disasters like the storm that is brewing in the Ogonilands.
The Ogoni continue to demand the exoneration of all Ogoni people criminalized for their defense of their lands and livelihood, including Ken Saro-Wiwa and other community leaders killed in retaliation for their activism in 1995. They continue to push for the Nigerian government to enter into a treaty recognizing Ogoni rights and autonomy and are calling for full transparency around the cleanup process and free, prior, and informed consent in all decisions affecting the Ogoni people, land, and resources.
Avery Kelly is a staff attorney at Corporate Accountability Lab.
