Dear Members of the EITI International Board,
Complaint: Shell’s status as a “Supporting Company” of the EITI is untenable, given its systematic failure to prevent and clean-up massive pollution across the Niger delta. As such, its membership of the EITI Association should be cancelled, and its representative should be removed from the EITI International Board:
Members of the Ogale and Bille communities from the Niger Delta of Nigeria, who are supported by the undersigned civil society organisations, submit this complaint about the UK oil company Shell PLC to the International board of the EITI. We call on the International Board to eject Shell as a designated “supporting Company” of the EITI. This must ensure that Shell is no-longer permitted to put forward a representative as a member of the International Board of the EITI, at the very least, until such time as it has fully addressed the massive pollution it has left in the Niger Delta.
There is no credible basis for the EITI to stake its claim that it is the global extractive sector governance initiative while simultaneously enabling a company like Shell, with its appalling pollution-control and clean-up record, to sit at the board shaping the initiative. As such, we call on you, the international board of the EITI to act with urgency – for the victims of pollution from Shell’s operations, certainly need a rapid response. It is perhaps only when Shell is removed from initiatives like the EITI, behind which the company can hide in order to burnish its image, that the company might – finally – do the right thing and fully and professionally clean up its mess. Accordingly, we call on you now to do the right thing to help make that happen – kick Shell off the EITI International Board, as a matter of urgency.
Thanks to massive contamination from Shell crude oil facilities, the communities of Ogale and Bille in the Niger Delta – consisting of approximately 50,000 people – have suffered a catastrophic loss of their livelihoods, following the destruction of farming and fishing territories upon which they are dependent for their way of life. Shell has acknowledged in court that it is legally obligated to clean up – and yet it has failed to do so for year upon year. The result has been the ongoing suffering of the communities, and they have been forced to seek relief through court action in the UK, in an effort to obtain both an urgent clean-up (to international standards), and compensation.
But – Shell is a company that cares so little about impacted local communities that it routinely resists addressing its pollution failings and liabilities, literally to the end:
Shell’s resistance to actually cleaning up its mess, until forced to do so, has precedent. To provide but a couple of recent examples:
- Following litigation in the Netherlands, the company was found liable to clean up two polluted areas in the Niger Delta. But the communities were forced to wait an unconscionable 13 years to obtain this relief.
- In 2015,again following court action (this time in the UK), Shell was finally requiredto clean up its pollution in the Bodo Community. The court required the company to pay significant compensation, and for a major clean-up of oil pollution from mangroves.
Shell’s apparent recklessness about safety and environmental controls in some parts of the world shouldn’t perhaps be a surprise, given the insightful comments of Shell whistleblower, Caroline Dennett, in 2022. She accused the company of “operating beyond the design limits of our planetary systems,” and “not putting environmental safety before production.” Overall, Ms Dennett expressed her concerns about operational safety and maintenance across Shell operations in the Delta.
Consistent with past behaviour, but in stark contrast to the impression Shell is keen to present to the outside world in its glossy presentations and greenwash-style advertisements that suggest good environmental management, there has been no effort to clean up the destruction that Shell has left to the Ogale and Bille communities to live with.
So once again, some of the poorest communities on the planet are having to take one of the largest corporations on the planet to court in one of the most expensive cities on the planet (especially for legal action), just to ensure the company, in fact cleans up that which it has accepted it is liable for – but which it has completely failed to address.
How much longer must the Ogale and Bille pollution victims wait for relief?
Clearly, if Shell were to be successful, the answer to the question is: For ever!
Shell argues that there is no liability for its parent company for acts perpetrated by a subsidiary, and that the case should be brought in Nigeria. Leaving aside the literally endless period of litigation that such an approach would ensure – essentially ending any prospect for relief – Shell is effectively saying to the victims of its pollution that it will do nothing unless it is forced to act. This totally unacceptable position is hardly a credible argument from a company that seeks to demonstrate its responsible stewardship of the environment, or to the management of risks associated with its operations.
However, in 2021, after five years of seeking justice, the UK Supreme court finally rejected Shell’s arguments that there was no arguable case that Shell Plc, the UK Parent company, could be held legally responsible for the harms caused by its Nigerian subsidiary – and so a case will be heard in the UK, probably in 2024.
Shell’s obfuscation continues: But meanwhile, just as Shell has been reporting obscene profits taking advantage of the war in Ukraine, the briefest perusal of Shell’s recently filed defence demonstrates that the company is intent on continuing to refuse to act to address the pollution and provide relief to the Ogale and Bille communities. Some of Shell’s outrageous arguments include:
- That the company has no legal responsibility at all for any of the pollution – despite the conclusion of the UK Supreme Court, and the persistent and vast-scale pollution that the communities are forced to continue to live with, caused by Shell’s operations.
- That the communities have no legal standing to enforce the company to clean up – this argument is frankly insulting – it seeks to steal agency from the very victims of its failings, from complaining about the fact and obtaining appropriate relief – including a proper clean-up (to global best practice standards), and compensation.
- Instead, clean-up enforcement is a matter for Nigerian enforcement agencies to require companies concerned to clean up – However, there is NO known example of any of Nigeria’s agencies overseeing the oil and gas sector, or of any agency concerned with environmental damage in Nigeria, actually holding any company to account and making them clean up. This failure, for sure, is an indictment of Nigeria’s government agencies – but it does nothing to lessen the obligation of Shell to fulfil its primary responsibilities to those negatively impacted by its operations. Such a claim is tantamount to an admission that the company will wilfully ignore the law, and shows a behaviour we would more normally associate with a gangster operation, than one of a responsible international company. In essence, under the law in Nigeria, Shell is obliged to clean up – which it fully knows – but its position is that unless an agency makes it comply with the law, it will simply ignore it.
The implications of these claims are extremely serious for the Ogale and Bille communities’ legitimate expectations that they should have their local environment fully restored, not to mention their right to receive substantial compensation for damages wrought on their way of life. Instead, this approach would leave the communities with no power to enforce a clean-up, rather they would remain utterly dependent on failed regulators, who have demonstrated their failure to be fit for purpose.
More seriously, these arguments are being put forward by Shell just at the moment when the company is in the process of offloading its on-shore assets, as it seeks to move off-shore. Were Shell’s arguments to prevail, the company would negate any legal obligations on itself to provide remedy to the multiple additional communities across the Niger Delta, despite its responsibility for the contamination, not to mention the vast profits it has made from resources that belonged to the very people who are now its victims. So much for Shell’s vision of a “just transition!”
Shell as a “Supporting Company” of EITI:
We feel sure you will agree with us that the above behaviour is unacceptable. An examination of EITI’s documentation, where it defines what constitutes a “supporting company”, also shows Shell to be far from fulfilling its obligations. The opening preamble describing “supporting companies” states:
“EITI supporting companies recognise that increased transparency can promote understanding of natural resource management, strengthen public and corporate governance, reduce corruption, and provide data to inform greater transparency and accountability in the oil, gas and mining sectors.”
We know that Shell understands, to a high degree of precision, the nature of its oversight of safety and maintenance in the Niger Delta, including where failings have taken place. Shell claims it runs a good ship, and yet it provides no credible data to back this up – even though severe pollution associated with its oil extraction projects is there for all to see – this is self-evidently a matter of public interest, and Shell needs to come clean. But their behaviour does not provide an example of transparent operations. On the contrary, what is abundantly transparent is the contrast demonstrated by the legacy of Shell’s operations across the Niger Delta, and that seen elsewhere in other parts of the world – for example, like in the UK North Sea, where we would surmise the company would not be allowed to get away with such an appalling performance.
The Preamble continues: “Supporting companies, working together with governments and citizens, aim to deliver natural resources in a manner that benefits societies and communities.”
What benefits? Perhaps to some corrupt elites, such as, for example, the beneficiaries of the corrupt deal for OPL 245 – but it’s hard to point to much of a benefit for anyone else, even though Nigeria’s citizens own the resources Shell is taking advantage of. Shell has dramatically failed to uphold any credible interpretation of this expectation of companies which might wish to be accorded the status of EITI Supporting companies:
- Shell is not working with government on these pollution matters – unless, that is, it is engaged in some sort of conspiracy with government to avoid addressing its operational pollution legacy.
- Shell is certainly not working with citizens – rather, it is forcing them to undertake expensive and risky litigation, about which it claims its citizen-victims have no standing – even though, pollution from its facilities has destroyed their way of life.
Consistent with Expectation 7 of EITI’s Company Expectations, Shell needs to explain how it is possible that massive pollution in its areas of operation has persisted without any credible clean-up operation? Expectation 7 requires companies to disclose how the company manages corruption risks. The absolute failure to remediate massive pollution in the Delta can only credibly be seen as either a major red-flag for corruption – or, if there has not been any corruption involved, Nigeria’s oversight agencies are incompetent and unwilling to enforce Nigeria’s laws. Which is it? Shell must explain the situation.
Regardless of the answer, Shell knows it is responsible under the law to clean up – but it has not. Shell is therefore, as demonstrated by its inaction, prepared to wilfully break Nigeria’s pollution laws – or it is exploiting loopholes in the full knowledge that its performance is massively substandard to how it would be expected to perform say in Europe or North America. This is tantamount to racism where the people of the global south are considered lesser humans.
Therefore, we call on you, the International Board of the EITI, to act urgently:
- Shell must immediately terminate its fight in the courts to avoid cleaning up the pollution in the Ogale and Bille Communities. It should apologise to the communities and recompense them for all costs associated with their necessary legal action. Shell must publicly state it is responsible for the pollution and agree to fully remediate the affected areas to international standards within the next 2 years.
If Shell will not agree to these measures,
- We call on you, the International Board of the EITI, to terminate all Shell/Shell representatives’ memberships of the EITI Association, thereby removing Shell from being recorded as a “Supporting Company” of the EITI, and simultaneously removing any Shell representative from sitting on the International Board, or any MSG in any country, pending Shell taking the necessary and urgent steps to remediate its pollution responsibilities across the entire Niger Delta of Nigeria.
We look forward to hearing from you as a matter of urgency. Please acknowledge receipt and send all responses to email@example.com
Expectation 7: Engage in rigorous due diligence processes and publish an anti-corruption policy setting out how the company manages corruption risk, including how the company collects and takes risk-based steps to use beneficial ownership data regarding joint venture partners, contractors and suppliers in its processes.