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Unfortunately there is no translation available yet from the #Milieudefensie ( #FoE)/Shell cases. @LRoordaLaw made a very good analysis of the judgments, in English, which can be found here: http://rightsasusual.com/?p=1194 . Some points of interest for the plaintiffs (warning: long&legal):
The CoA concluded that to escape strict liability, sabotage must be proven beyond reasonable doubt. Shell (SPDC) has not been able to discharge that burden. The standard set implies that spill investigations must be much more thorough re photo’s, technical measurements etc.
This is important, as nearly all spills - according to Shell - stem from sabotage. In all our cases proper footage/documentation/measurement data was missing.
The court-appointed experts found that sabotage was a probable cause, but also complained about lack of information. The information provided did not enable them to give a decisive answer to the question what caused the leaks.
Note that in the Goi-case, the CoA concludes that Shell violated its duty to disclose/cooperate (art 21 & 198(3) DCCP) by withholding relevant information. This is rare. Apparently, not only the plaintiffs but also the court must have been frustrated with Shell’s attitude.
Whereas liability for the occurence of the spills was dealt with on the basis of the Oil Pipelines Act’s strict liability provision, the court’s assessment of Shell’s Oil Spill Response is based on common law negligence.
In this context, the court considers that SPDS has a general duty to prevent leaks as much as possible and to limit damage as a result of leaks once they have occured. Always good to see that acknowledged.
Shell argued in all cases (and in many other Nigerian cases) that they weren’t allowed access by the communities when trying to stop/investigate the spills. The court finds that Shell cannot be blamed for this refusal, but that it should have taken that possibility into account.
The damage increased significantly due to the delayed response. Since the oil spills were foreseeable (in view of sabotage and corrosion problems) and the access problems were foreseeable too, the court concludes that SPDC had a duty of care to install a leak detection system.
Given the fact that these problems are widespread in the Niger Delta, the scope of this is potentially much wider. A proper updating of Shell’s pipeline system in Nigeria could make a huge difference in the prevention of more pollution. First, Shell must install an LDS @ Oruma.
To assess wether the parent company also had a duty of care, the CoA relies on the UKSC Vedanta judgment. It dismisses Shell’s arguments that RDS was not the ‘proper’ legal entity. It notes that the same board members took seat in several legal entities and the executive body.
The court also refers to Shell Global Solutions, which provides the technical norms to the Shell companies, as “a vehicle/extension of the Shell top”.
The CoA concludes that RDS knew that an LDS was lacking in Oruma at least since 2010. It also finds that the parent company did in fact interfere with questions related to the provision of an LDS. It should have used that position to make sure that an LDS was installed. A first!
The CoA ordered both SPDC and RDS to install an LDS on the pipeline @ Oruma within a year, under a penalty of €100.000 a day (each).
As regards clean-up, the court concludes that Shell had a duty of care to remediate below intervention target levels, and that the plaintiffs had not shown that it had breached that duty. This is still a matter of debate in the Ikot Ada Udo case.
After a long battle, this is a highly satisfying outcome for my clients - although it is tough on mr. Akpan that he needs to be even more patient.
Note that, if Shell wants to appeal to the Supreme Court, they can only appeal issues of Dutch law. This case is based largely on factual assessment & Nigerian law, which are not matters for review by the Dutch Supreme Court. 17/17
