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INTERVIEW: Suing Shell in The Netherlands set standard in global home litigation – Williams & More Breaking News Headlines Today

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On May 25, Chima Williams, a lawyer and the Executive Director of the Environmental Rights Action/Friends of the Earth Nigeria became the third Nigerian to win the prestigious Goldman Environmental Prize. Mr Williams was awarded for his work with two Niger Delta communities to hold Royal Dutch Shell accountable for environmental damage caused by a spill from its Nigerian subsidiary in the communities between 2004 and 2007. In this interview with PREMIUM TIMES, Mr Williams spoke on why he took up the case, the challenges, and the solution to the pollution in the Niger Delta. Excerpts:

PT: When you learnt you are a recipient of this award, what first came to your mind?

Williams: It came as a shock. Because the circumstance under which I received that announcement or the call from the U.S. was such that made it a very memorable one. I had been in the hospital, I was on oxygen for eight days and I came back from the hospital. Two days after I came back from the hospital, I received a call. And I was expecting that that call, because it was a U.S. number, was coming from my friend. Only for me to pick up the call and I heard ‘congratulations.’ And I said congratulations for what? And it was announced.

So you could imagine what would have been happening within me and my family. Because, incidentally, I had my family, we were together. My children came back from school, you know they’re in boarding houses, they came back from school. My wife. All of us were together. I think we were about to pray when that call came in, so it was nostalgic because it was something that was not expected.

PT: The award came from the work you did with the farmers and fishermen who sued Shell in The Netherlands. Is there a reason you decided to take up that particular case?

Williams: Yes. The point is that that is not the first case that we have taken up from the Niger Delta and elsewhere. And that was not the first victory we had won both nationally and at the home country level.

The history behind taking up that case arose from the fact that we had taken action on gas flaring against the multinational level, particularly Shell, and we won at the Nigerian federal high court, which ordered Shell to end the practice of gas flaring for flouting the constitutional right to life and dignity of the human person in Iwhrekan community. And Shell continued to flare gas.

And we looked at it from the fact that it is not about getting a judgment, it is about enforcement of those judgments. Because the Nigerian executive that is supposed to enforce that judgment has been shifting the goalpost on their own on the issue of ending gas flaring in Nigeria, even amidst the losses associated with it.

So, within our team, we analysed and said can we try something else. Home country litigation, where they respect the law, where they respect court judgments. That was how we came about the issue of home country litigation in Holland.

Now, the next thing was for us to determine which type of action will we take? Now we have done gas flaring, we have a positive judgment. So we cannot take it again. And the two major polluting activities in the petroleum sector are oil spills and gas flaring. That’s how we decided on oil spills.

In the course of making that decision, we had to look for the strongest cases, where it will be easier to prove the causal connections and cause of spill not to have been third-party interference that is very clear. I visited over 20 communities, and interviewed close to 100 victims. Then, within my team, we analysed and continued to shortlist until we got to 10 communities. These communities are from the entire Niger Delta where heavy pollution happens. And it was after those interactions, evidence-gathering, and interviews that we now resolved that these three cases were the strongest. That was how we selected those three cases. It was as a result of rigorous analysis of the situation that we concluded on the three communities.

PT: The issue of home country litigation, that was the first time an oil multinational would be sued in their home country…

Williams: (cuts in) That’s not the first time. In the Netherlands, that’s the first time. Because we know that we’ve been involved in cases in the United States, against Chevron. We tried Mobil. One of the cases that I told you that we had a positive result was against Eni, Nigerian Agip oil company, and their parent company in Italy.

But, in terms of securing this type of judgment that has set rules, this is the first time. Because the first victory we got outside of the lower court’s favourable judgment in Akpan’s case, and now the court of appeal, was the issue of jurisdiction. Because the first challenge that was thrown up was the issue of jurisdiction. And even the lower court upheld her jurisdiction to hear the matter and that ruling was equally upheld by the court of appeal. Which means, on the issue of jurisdiction, we have this and we can extrapolate it to other parts of Europe that apply the same judicial system like the Netherlands.

PT: This case, from the time of filing to when the ruling was delivered, took about 13 years. Did you at some time get tired of shuttling between Nigeria and Netherlands? And what was the financial implication?

Williams: The point here is, when you are committed to something and you know that the people you are working with have absolute confidence and faith in you and what you are doing, you will try as much as possible not to dash their hope. Especially, when you know that what you and your organisation are doing is to help change a narrative about people that have been negative, and not the correct narrative.

If we take our minds back, within this period, was the period that the message, the story about the Niger Delta was always in the negative. It was either they are oil thieves, ‘bunkerers’, or conflict-ridden people, all manner of negative narratives. But nobody bothered to check and understand that before this narrative came so strongly from the oil companies and their cohorts in government circles, that Niger Delta was reputed to be the most peaceful and the most hospitable place to be in Nigeria.

So this narrative, if you know that God has positioned you to contribute in changing the narrative that a people can patiently pursue a legal cause to its logical conclusion and achieve a positive result. Of course, as human beings, there are times that you will think ‘ugh, nothing is happening again so what do we do?’ That is natural and normal. But when you remember the burden on you, you change your position.

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So this has been the source of encouragement, not only for me but for my organisation and for our legal team, and those that have been supporting us. Because we believed in the cause and we still believe in the cause that we are pursuing.

PT: Do you think 13 years is a rather long time for the case to come to a conclusion?

Williams: Well, as a lawyer in the case, because I know the reasons why part of the time… yes this case could have been tackled earlier. But, you know, as lawyers we always tell our clients: in litigation, you only know when you will enter, you don’t know when you will come out. Because other factors and other forces will come into play. That is why the aspect of patience in litigation is key.

PT: When this ruling was delivered last year, there was the belief that it would open the floodgates for people to sue Shell in The Netherlands. Has that been the case?

Williams: Those thoughts are natural thoughts. Because in the first instance, that judgment was taken as a pan-Niger Delta judgment, not just for the communities. But, to litigate outside the shores of Nigeria is not easy; the cost implications alone is huge. That could be an impediment to opening the floodgate.

A standard was laid, which is the first of its kind in global home litigation. And that is the fact that a body incorporated in The Netherlands, Milieudefensie, Friends of the Earth Netherlands was a co and is a co-plaintiff with the Nigerian victims. That had never happened before. What we normally get is groups supporting the victims to bring their actions and the rest of them. So, this is a new standard. It is equally to check that the floodgate is not open for interlopers and unnecessary…

So you will have to have a good cause to get an incorporated body in the home country to join you in your litigation. These are checks and balances. Because for us as lawyers, I will not advise even when you know that you don’t have a case, simply because you want to go to home country, you take your case there.

Let’s look at the other positive side of this judgment. Now, at the last count, from that 29th of January, 2021, till date, how many positive judgments, where the courts, including the courts in Nigeria that have been regarded as conservatives in making awards against multinationals? How many positive decisions that have come out of Nigerian courts and other home countries. Because, immediately after the January judgment, on February 12th, the Supreme Court in London gave a resounding judgment that says victims from outside of UK can bring actions against a UK company.

And, in Nigeria, we’ve had high-profile awards against Shell and other multinationals, including, something that wouldn’t have been thought possible, an almost $2 billion award to a few community members, from one community. And another $5.5 million to a family. That wouldn’t have been thought possible. And you can count a number of them, including an order on Shell to put the money in the court’s account, otherwise no divestment.

So these are positives that we will say are fallouts of the judgment. Which means, even if there are no home country floodgate litigations, the courts in Nigeria have taken proactive steps.

PT: One of the problems we have with the Nigerian judiciary is that it’s one thing to get a judgment, it’s another thing to enforce it. Has that been the case in this particular suit?

Williams: This is a question I get all the time and my answer has always been simple: it is not the duty of the judiciary to enforce her judgment. The duty of the judiciary is to look at the case presented before her and make a pronouncement one way or the other. It is the duty of the executive to enforce court judgments. And in this, it is the executive that has failed in their duty to enforce court judgments that give leverage to multinationals and some powerful individuals to pick and choose the court orders they want to obey and the ones they don’t want to obey.

As a lawyer, I make bold to say it everywhere in the world that the Nigerian judicial system is one of the best and one of the most proactive in recent times. We could have said a lot of things about it in previous times but when the judges are updating themselves on new legal trends globally, this is how we have seen these proactive judgments that are coming out. And we must encourage them. Of course, we know that there definitely will be some bad eggs. Within every society, it’s not everybody that is totally clean, so let’s not use the activities of the few negative ones to smear on all.

PT: So in this particular case, has The Netherlands’ executive enforced the judgment?

Williams: Well, you know organisations, citizens respect their laws based on one, what will happen to me if I disobey this law or this order of the court? And everybody knows the consequences of disobedience to a court judgment. So, it is left to you if you one the executive to apply the hammer, or you want to take proactive steps to do what the courts had ordered you to do.

In this, there is no place for the executive to apply the hammer because this is a court of appeal judgment and if any of the parties is dissatisfied, there is still the Supreme Court. So whatever happens in between is the choice of the parties.

PT: But this case has not gone to the “Immediately after the January judgment, on February 12th, the Supreme Court in London gave a resounding judgment that says victims from outside of UK can bring actions against a UK company.”e Supreme Court.

Williams: There are some aspects that are before the Supreme Court already.

PT: You were also involved in the Iwherekan community case. I know that Shell has appealed that judgment. What’s the current status?

Williams: The current status is that we are in court and we have exchanged briefs. It’s to adopt those briefs. And the case will be coming up on June 28.

PT: You have been involved in quite a number of cases outside Nigeria. What major difference have you noticed between Nigerian courts and their foreign counterparts in terms of the way they operate?

Williams: In terms of operational methodology, there is no difference. Because we are talking about a 13-year-old case before we got the judgment at the Court of Appeal. And here in Nigeria, I’ve gotten a judgment within four months. So it depends on the factors at play.

The issue is not that possibly cases stay longer in Nigeria because the attitude of the lawyers, the attitude of the court, and all other factors that come into play may determine how long a case lasts. And the application of the legal processes and legal standards and jurisprudence equally may determine, the understanding of the judges which might be a key factor in determining how they look at the case and the nature of the case that you’ve brought.

The only difference is possibly you are sure that the judgment that you secured could be enforced faster at home country level than in Nigeria because of the interplay of factors that we’ve already mentioned.

PT: You’ve been involved in environmental activism in the Niger Delta for decades. Why do you think the Nigerian government has found it difficult to solve the pollution problem in the region?

Williams: I think part of the problem, honestly, is by us. Those of us in the Niger Delta and those of us from the Niger Delta. Because in a multi-ethnic society like Nigeria, if you want your issues to be taken seriously, you must yourself be organised. Because when you talk about not solving the Niger Delta problem, the question that comes to mind is this is a sector, we know the sector that creates largely these pollution problems in the Niger Delta, and that’s the petroleum sector. And then you check how many petroleum ministers have come from the Niger Delta and then how many have come from outside of the Niger Delta over so many years now. So, what has been their contribution in solving the problems or creating further problems? They have not provided leadership and we must call a spade a spade.

So if you from the Niger Delta is the minister of petroleum or the minister of state for petroleum and you are not talking about the problem that is created by a sector that you are heading on your people, who do you think will solve the problem for you? It will be wishful thinking to be pushing it. Now you make a strong case to Mr President and let Mr President fire you because you’ve made a strong case for your people. And then you would become the hero of the people and you would have left a standard for whoever may take over from you to follow. So I think, basically, that is the number one problem.

And then, of course, the fact that others see the resource in the Niger Delta as a national resource. This is where the resource control question came up from. And then the disagreement by the federal authority with that position, of resource control. What should be done is to change the narrative? And say that we are not saying it’s not a national resource. But if it is a national resource, the goose that lays the golden egg must be treated with a golden hand. There should be exceptional treatment for the Niger Delta and her people, especially in the environmental restoration drive. Anything short of that is that the cycle continues.

PT: You are the second Nigerian to win this. How important is this award to the work that you do in the Niger Delta?

Williams: When you gain recognition for the work you do, it only inspires you to do more. Especially, when you did not lobby, beg, or ask anybody to give you that recognition. It came purely outside of your own knowledge, which means people are taking records of what you are doing. Because somebody must definitely nominate you before voting will be done. In this instance, looking at the jury that made the selection, you will know that it is something that as a human being, first and foremost, eternal gratefulness to God Almighty who made this to happen. Because it will never be by power or by might or by intelligence or by anything that one has done, it’s purely God’s favour.

For me, it is an inspiration to do more, to support more, and to think more. Because it’s creative thinking that drives changes. You can’t do the same thing everybody is doing over and over and you expect to get a different kind of result. So you must do something differently, even though at times people that do things differently are called mad people. At times, that madness is needed, to think out of the box.


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