Nigeria oil pollution claim survives constitutional challenge

Oil giant Shell could be sued in London by 13,000 Nigerian fishermen and farmers for allegedly violating their right to a clean environment under Nigerian law, the High Court has ruled.

The multinational company is facing group litigation arising out of oil contamination, including both in the ground and in water, affecting two distinct areas in the Niger Delta – the Bille and Ogale regions.

It is alleged that Shell failed to prevent, mitigate or remediate oil contamination resulting from spills and thefts from Shell’s pipelines and associated infrastructure operated in or near to the two regions.

The court heard that Nigerian law recognises as a fundamental right the right to a clean and healthy environment, something the claimants rely upon. However Shaheed Fatima KC, for Shell, argued these constitutional claims had no real prospect of success as a matter of Nigerian law. Such claims cannot be brought against private companies, she said, and claims in respect of pollution damage fall outside the limited scope of the rights invoked by the claimants under the African Charter and Nigerian Constitution.

But Mrs Justice May ruled on Wednesday that the constitutional claims were ‘arguable’. She added: ‘As sensible and logical as Ms Fatima’s elucidation of the Nigerian legal position appeared to me to be, based on the authorities to which she directed me, it is subject to this important reservation: Ms Fatima is not a Nigerian law expert and neither am I.’

She continued: ‘What she says about the likely impact of those decisions on the constitutional claims as pleaded here may be right, however in the absence of evidence of Nigerian law I am not prepared to apply the ancillary point as she has interpreted it so as to rule the claims devoid of any real prospect of success at this stage.’

The judge said any issue of Nigerian law would have to be resolved by factual evidence from expert Nigerian lawyers. 


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