Emily Gosden, energy editor
8 JANUARY 2017 • 10:23PM
In January 2015, Royal Dutch Shell agreed to pay £55m in compensation to thousands of residents of Bodo, a fishing community in the Niger Delta. Their livelihoods had been devastated by two oil spills in 2008-09 that had been caused by corroded Shell pipelines.
After years of high-profile wrangling, the landmark settlement was supposed to draw a line under one of the most toxic reputational issues for the Anglo-Dutch energy giant, and pave the way for the oil blighting the village to finally be cleaned up.
But in Bodo, out of the spotlight in the two years since the case’s apparent resolution, things have not progressed as planned. Though the compensation has been paid, oil still laps on the shoreline of its creeks. The promised clean-up operation has yet to begin.
“It’s shocking that, eight years on, the pollution is still there, and that Shell failed to clear up the spills in the first place,” says Joe Westby, business and human rights campaigner at Amnesty. Under Nigerian law, the spills should have been cleaned up immediately, he says. “It took 10 weeks for Shell to even come and stop the oil spilling into the creeks.
“The creek is basically completely destroyed, there is no vegetation on the banks, the soil is black, the water is visibly covered in an oily sheen and there is a very strong smell of petroleum. This is water that, before the spills, people relied on for fishing, for drinking and for bathing.”
Shell insists some preliminary work did take place soon after the spills, and that the original damage has been compounded by oil from theft and illegal refining, and it also argues that it has been unable to get the community’s backing to access the site safely and conduct a proper clean-up.
In April 2015, a few months after the compensation deal was agreed, Shell and representatives of the Bodo community did finally come to an agreement about how the clean-up should proceed. After two years of talks in a mediation process overseen by the former Dutch ambassador to Nigeria, the two sides signed a memorandum of understanding on a plan that would see international contractors carry out the clean-up with the assistance of 300 youths from Bodo who would be trained up for the job.
This was initially well-received by the Bodo community; it was “like a celebration” when the details were unveiled, says Igo Weli, external relations manager for the Shell Petroleum Development Company of Nigeria (SPDC), Shell’s Nigerian subsidiary.
By September 2015, the youths having been selected and Shell having agreed to a community request to increase their number to 400, the clean-up was finally due to begin. “On the day the contractors were about to start, youths from the community came and chased them out of the office and said, ‘We don’t want the clean-up, we want the cash for the clean-up’,” says Weli. “They smashed one or two windscreens and said, ‘We want the money’.”
At a meeting in the city of Port Harcourt the following month, Weli says, even Leigh Day, the London-based solicitors that represented Bodo in the compensation case, advised community representatives that they could not expect further cash. Yet the demands kept coming. “The community insisted,” says Weli. “One of the community representatives stood up and said, ‘We don’t want clean-up, we’ll clean it traditionally, give us cash’.” It is unclear what, if anything, a “traditional” clean-up would have entailed.
A series of futile meetings over subsequent months saw different sets of community representatives come and go, making changing demands – such as the involvement of local contractors rather than the international firms that had been agreed.
Behind the demands lay a power struggle in the Bodo community, after the death of its traditional leader, King Felix Berebon.
“There has been a period of instability in the community, caused by the death of the paramount ruler,” says Dan Leader, a partner at Leigh Day. “There has been a leadership dispute and the various factions in the community have been using this issue as a bit of a political football.”
In the midst of the power struggle, it is understood that the heir apparent, now King John Berebon, was one of those pushing for more cash. However, by August 2016, the leadership tussle was settled, apparently prompting a change of heart. Weli says the new king told him: “OK, SPDC, I’m going to resolve the issues so the clean-up can start.”
While there have been several more months of delay, with Shell understood to be demanding injunction requests, brought by individuals in Bodo to try to prevent the clean-up, be dropped, Mr Leader says he is now “optimistic” that work can finally get under way. Joe Westby at Amnesty agrees: “The community is now united behind the new king and there is no obstacle to the clean-up moving forward.”
However, both argue that Shell must take a share of blame for the delays. Leader argues the company failed to engage with the community during the mediation process from 2013 to 2015, instead “dealing with the elites in Port Harcourt” on their behalf.
“There was complete ignorance among large swathes of the community about what was going on, which meant that people who were trying to use the process for political purposes were able to exploit that ignorance and create misunderstandings, which led to the problems,” he argues. “Had this been dealt with in a much more collaborative fashion, the delay, in my view, could have been avoided.”
SPDC’s Mr Weli insists: “We are doing our best. We have got our contractors, we have got the money, the partners, we are begging [for access], we are talking to partners and calling state government to help us.”
Both sides are keen to suggest that lessons should be learnt from Bodo when it comes to the best way of dealing with other cases.
Leigh Day is currently representing two other Nigerian communities, Bille and Ogale, which want to sue Shell in London over spills caused by theft, while Shell argues that the cases should be heard in Nigeria.
Messers Leader and Westby argue that it is only high-profile exposure in London courts that gets results, with access to justice in Nigeria limited. At Amnesty, Mr Westby claims even the mediation process “would not have happened” were it not for the London litigation.
However, SPDC says the delays to the process since the memorandum of understanding was signed in 2015 “clearly demonstrate that litigating Nigerian oil spill cases in the English courts does little to resolve the complex underlying security and community issues, which can frustrate attempts to clean up areas impacted by oil pollution”.
Shell also argues that English courts are ill-placed to understand the extent of ongoing sabotage and crude oil theft that are continuing to cause environmental damage. Failure to tackle this would render the long-awaited clean-up largely pointless, Weli suggests. “It’s like trying to mop the floor when the tap is still running,” he says. “You’ll just be wasting your time and money.”