On November 22, 2023, the United Kingdom’s (UK) High Court found that 13,000 Nigerian fisherman and farmers from the Ogale and Bille communities in the Niger Delta can bring landmark human rights claims against Shell for breaches of the communities’ right to a clean environment.
Shell, a British-Dutch company, first began extracting oil from the biodiverse Niger Delta in the late 1950s under a joint venture it established with the Nigerian government just four years before Nigeria gained independence from Great Britain. Now, decades later, Nigerians from the Ogale and Bille communities are asserting their rights under both the Nigerian Constitution and the African Charter in court in the United Kingdom. While there have been previous cases in Nigerian courts, affected communities have maintained that Shell has long held strong influence in Nigerian courts, making it difficult to obtain justice in Nigeria.
This blog post first describes the human rights and environmental harms Shell has caused in the Niger Delta. It then considers the significance of the UK High Court’s recent decision to allow the claims against Shell for breaches of the communities’ right to a clean environment under the Nigerian Constitution and the African Charter to proceed.
History of Shell in the Niger Delta
Ogoni land, an area in the Niger Delta of Nigeria, historically had great biological diversity, fertile soil, and abundant fishing. The mangroves of the Niger Delta formed critical breeding habitats for several species of fish, which supported the livelihoods of the nearby fishing and farming communities. KorneBari Nwike, former President of the National Union of Ogoni Students (NUOS International), USA and current Corporate Accountability Lab (CAL) board member, reflected on life in Ogoniland in a recent phone interview with CAL. He described the Niger Delta from his childhood as a “food basket,” where tree farm cultivation and fish from the river provided for all the community’s needs.
Over the years, oil spills, gas flaring, and acid rain stemming from Shell’s long-standing operations contaminated the soil and rivers, destroying the health and livelihoods of farming and fishing communities in the Niger Delta, including in the Ogoni region. In Bille, it is estimated that oil pollution damaged 13,200 hectares of mangrove swamp. Referring to those still living in Ogoniland, where he grew up, KorneBari Nwike commented: “Their way of life has been taken away ... there are no more fish.” He further commented, “pollution of Ogoni environment for over 50 years by The Royal Dutch Shell Oil company is a breach of their fundamental human right to exist.” The Ogale community, in particular, has experienced the most serious pollution of its groundwater according to a 2011 report by the United Nations Environmental Program. The report found that drinking water contained benzene, a known carcinogen, at levels 900 times higher than the World Health Organization (WHO) guidelines permit, posing “an immediate danger to public health.” The communities face long-term health impacts as a result of the pollution, including increased risk of cancer and reports of premature death and miscarriage.
The Ogoni people have long demanded accountability from Shell and the Nigerian government for environmental damage. Following decades of abuse, the Ogoni organized the Movement for the Survival of the Ogoni People (MOSOP). In 1990, under the leadership of Ken Saro-Wiwa, MOSOP publicized the Ogoni Bill of Rights, which asserted the right to a clean environment. In a recent phone interview with CAL, Charles Wiwa, an activist for the Ogoni peoples’ environmental and human rights, recalled what his relative Ken Saro-Wiwa said about the importance of a clean environment when receiving the Right Livelihood award: “The environment is humanity’s first right... when your environment is polluted, it’s destroyed, and you no longer have the right to live.” Over thirty years later, the Ogoni Bill of Rights remains a defining document for the community and the path forward.
The UK High Court’s Decision
In 2015, Nigerian Plaintiffs from the Ogale and Bille communities, represented by British law firm Leigh Day, sued Shell and its subsidiary SPDC in the United Kingdom, where Shell is incorporated and currently headquartered. Eight years later, while the communities continue to suffer from polluted drinking water and environmental devastation, the case is finally proceeding to trial. Much of the delay was due to jurisdictional issues that have since been resolved in the communities’ favor in a landmark ruling in 2021. (Read Leigh Day’s press release on this monumental court decision here.)
In its most recent decision, the UK High Court found that plaintiffs could bring claims under the Nigerian Constitution (Sections 33(1) and 20), recognizing a right to life and requiring the state to protect and improve the environment, and parallel rights under the African Charter, recognizing a right to life and a right to a satisfactory environment of the African Charter (Articles 4 and 24). Importantly, these human rights claims are not limited by a statute of limitation.
The Significance of the UK High Court’s Decision
If the case brought by the Bille and Ogale communities is successful, it will be the first time that a British multinational company is found to have violated a communities’ right to a clean environment. The addition of the constitutional claims reflect an important opportunity to protect the rights of minority ethnic groups, like the Ogoni.
The Ogoni fight has been going on for decades. In 1996, a Nigerian and a US NGO filed a complaint with the African Commission on Human and Peoples’ Rights, alleging in part that the Nigerian government, in collaboration with Shell and SPDC, violated the African Charter’s right to life (Articles 4) and right to a satisfactory environment (Article 24), the same articles relied upon in the present case. However, Shell was not a part of the case before the Commission, as the African Commission has no jurisdiction over corporations – a glaring gap in its (and in other international courts’) powers. With the addition of these constitutional claims to the case before the UK High Court, Shell is now subject to the enforcement abilities of the court.
The absence of a statute of limitations under Nigerian constitutional law makes it easier for affected communities to seek justice in court for environmental and human rights abuses. Statutes of limitations can prevent otherwise valid claims from proceeding to trial, as has occurred in similar cases. For instance, in a case decided in May 2023 by the UK Supreme Court, Shell evaded liability for the Bonga oil spill in three different Nigerian states, when the court ruled that the claim was barred by the statute of limitations under Nigerian law. Even in the current case, Shell has tried to argue that it is not responsible for oil spills that occurred more than five years ago, despite ongoing contamination of the communities’ lands and waterways.
With the case finally proceeding to trial, the communities are one step closer to obtaining compensation and remediation for the contamination of their water and destruction of their livelihoods Shell allegedly caused. “Ogale and Bille are very important communities in Ogoni ... I want to commend the strong men and women who did not give up [and] have continued to fight,” commented Charles Wiwa. The decision may clear a path for communities suffering from environmental destruction to bring claims for pollution damage as human rights claims, as a clean environment is a prerequisite to respecting human rights. We hope that this is one more step towards justice for the communities and greater enforcement of environmental rights as fundamental rights.
Alina Carrillo is a legal intern at CAL and a 2L at Northeastern Law School.
