The preceding chapters have detailed the devastating impact and deep roots of hydrocarbon pollution in Bayelsa. A toxic cocktail of IOC and regulatory failures have fed a crisis on an enormous scale.
Hundreds of thousands of people in Bayelsa have been forced to live on contaminated land, drink and fish in contaminated water, and breathe contaminated air.
Mortality and morbidity rates continue to rise sharply, as has the incidence of chronic disease, in communities without the resources to cope.
Countless lives and livelihoods have been destroyed. Thousands of communities and tens if not hundreds of thousands of people have seen their land and fishing grounds poisoned.
Neonatal death and child malnutrition have risen, and hundreds of thousands have been forced into abject poverty.
Communities have been driven apart by the loss of livelihoods and disputes fuelled by competition for compensation and remediation resources.
The oil industry in Bayelsa has earned huge profits for the operators, but fuelled six decades of misery for the state and its people.
All of this has happened because the IOCs have behaved in ways they would never contemplate in their home jurisdictions, acting as though Bayelsa’s environment and Bayelsan lives do not matter.
And it has happened because the regulatory regime, distorted by vested interests, has failed to hold IOCs to account.
While this report has shone a spotlight on the suffering at the heart of the Niger Delta, the story itself is not new. The devastation caused by oil pollution in the Niger Delta has been in the international spotlight for almost 30 years. Countless reports have been written. Expert panels have been convened. NGOs have lobbied. International bodies have issued statements articulating their grave concerns.
Yet the reality is that little has changed. All too often, the reports have ended up gathering dust on a shelf. The calls of civil society groups, both domestic and international, have gone unheeded. Government has appeared unable or unwilling to act.
Meanwhile, thousands of communities and hundreds of thousands of lives have been blighted. As this report shows, the scale of the challenge is huge. Action is needed on a scale not seen before to address the damage done and prevent the threat of further damage in future.
Remediation will cost billions of dollars, and a new system of regulation and updated legal frameworks will be needed to minimise the risk of further oil pollution in the future. Time is running out to tackle the problem and reverse the decades of damage inflicted on communities across Bayelsa. Onshore oil reserves are decreasing - conservative estimates suggest that there may only be sufficient oil reserves left to support 25 more years of onshore production. The IOCs have already begun programmes of divestment, selling off marginal onshore assets, and investing in deep water oil and gas. In doing so, they are seeking to wash their hands of responsibility for the problems that more than half a century of poorly regulated exploration and production have caused.
The risk is growing that if action is not taken soon, the major companies that have profited from the oil business in Bayelsa over the last 60 years could walk away, leaving the state and its impoverished residents to pick up the tab for any clean-up. The poorest could be left once again to pay the price of activities that have enriched others but not benefited them.
But there is hope. Demands for action are growing within Nigeria and international public opinion is also shifting outside the country. Within Nigeria, pressure for change is rising at all levels. Political leaders, especially at local and state level, are increasingly demanding action.
Calls for change are gathering pace at the international level too. International organisations such as Friends of the Earth Europe, Amnesty International, Environmental Rights Action, Milieudefensie are demanding that the OCs, in particular Shell, i) provide proper compensation to all communities affected by failed or delayed clean- ups of oil spills; ii) decommission all ageing and damaged pipelines; and iii) commit to funding the clean-up of all areas of the Niger Delta that have been affected.474
Even shareholders and investors in the industry are calling for more environmentally responsible standards and a reduction in systematically polluting sources of energy.475 In parallel, polluters are seeing mounting attempts to hold them to account through the courts. In this vein, Nigerian courts also appear to be taking a firmer stance in their dealings with oil companies while also adopting a more liberal approach to the interpretation of the locus standi doctrine. For example in Shell v Agbara SC. 731/2017, the Supreme Court imposed significant awards against Shell for the pollution of Ejama Ebubu community of Tai Eleme Local Government Area of Rivers State. And in Centre for Oil Pollution Watch v NNPC, 2018 the Supreme Court widened the scope of the locus standi rule in order to allow civil society groups to institute actions against oil companies in the interest of the public. This ruling broke from a tradition of conservatism which had hitherto prevented interested third parties from instituting actions against oil companies on behalf of the public.476
The UK Supreme Court and Hague Appeals Court rulings on 12 February and 29 January 2021 respectively confirmed that Nigerian communities can bring their legal claims for clean-up and compensation against Royal Dutch Shell Plc and its Nigerian subsidiary in the English and Dutch courts. These judgements are largely the result of tenacious and dedicated work by NGOs and lawyers working hand in hand with affected communities in Nigeria.
Increased scrutiny of IOC behaviour is being matched by growing concern about the climate crisis and the need to chart a path to a low carbon future. There are growing demands for environmental and climate justice. And they are being matched globally by demands for racial justice. Through movements like Black Lives Matter, the international public is increasingly calling on companies to confront the legacies of colonialism and environmental racism in their approaches to extraction in the Niger Delta and their engagement with communities.
At a time when Nigeria’s dependence on oil revenues is decreasing, a window of opportunity opens to set a new course and help Bayelsa begin to recover from the decades of damage it has suffered and re-imagine a different future.
Seizing the chance to set a new direction and build a new paradigm will require a new strategic approach. Too many vested interests benefit from maintaining the status quo. Lobbying driven by the IOCs and the very dynamics of Nigerian politics means that previous attempts to overhaul the system have been challenging.
Change will require a concerted and coordinated effort of national and international action. Direct pressure will need to be placed on the IOCs through legal action.
And all of this will need to be underpinned by the public in the IOCs’ home jurisdictions, as well as in Nigeria, to demand change. Engaging the support of stakeholders who have long campaigned on this issue, such as NGOs in Bayelsa, will be an important first step, but mobilisation will have to go much further to reach publics that have not previously been involved.
A number of different actors will have an important role to play.
The Government of Bayelsa has already shown leadership by financing and spearheading this commission of inquiry. But change at the federal and international levels will take time. The State Government should use the powers it already has to start driving a campaign for change. Five elements will be vital.
First, the Bayelsa State Government should act to ensure the report and its findings are widely disseminated and understood in Bayelsa and beyond. The report should form the basis not only for discussions with the Federal Government, but with other states to gather support for proposals that could benefit the entire Delta region.
Second, the state should take steps to strengthen the enforcement of environmental regulations. While it has a limited remit, as Chapter One outlined, the state does wield some formal powers in the environmental sphere. It should take steps to maximise their impact. The State Government should make enforcement of oil company obligations a top priority and invest in increasing the capacity of the State Ministry of the Environment to enhance its ability to exercise its powers appropriately. To do this, the state should consider options including tapping existing ecological funds.
The State Government should also consider using its powers under the Land Use Act to revoke IOCs’ land use licences and pipeline rights of way for facilities that have high leak rates. In parallel with this, the state should increase its data collection on incidents within Bayelsa.
Third, Bayelsa State Government should rapidly enact new legislation to extend its environmental enforcement powers.
Fourth, the Commission recommends that the state sets up a Bayelsa Litigation Fund to support citizens in taking legal action against oil producers who fail to discharge their obligations appropriately.
Fifth, the state should establish institutions to strengthen the scrutiny of the oil producers and the Federal Government and intensify the pressure for change. Such institutions will also have a critical role in ensuring that the voice of affected communities continues to be heard. That may mean, among other things, extending the life of the Commission or developing a successor organisation. It will also require the establishment of an internal coordination function to help orchestrate the various streams of activity. It may be that a unit attached to the Governor’s office would be best placed to play this role.
Pressure on the Federal Government and the IOCs from state level should be complemented by pressure from the international community. International institutions, NGOs and the broader international community all have a critical role to play.
Although international institutions and NGOs have already done much in this sphere, a renewed effort is needed. Dealing with the extractives industry is a core facet of policies designed to meet the Sustainable Development Goals (SDGs), especially given that Nigeria is the most populous country in Africa. International institutions should offer incentives and support to increase pressure on IOCs and their home governments to adopt best international practice in extractive operations. Nigeria’s membership and support of these institutions should be dependent on meeting globally set standards.
International NGOs have campaigned on this issue for many years. But concerted, united efforts must be undertaken to raise the profile of the impact of extractive industries on the health, wellbeing and environment of developing countries. This will help to mobilise public opinion about the critical need for home governments to regulate these issues.
In Chapter Five, we outlined the importance of the emergence of new international frameworks to hold companies and countries to account, and the incorporation into domestic law in the home jurisdictions of the IOCs of new rules to hold them accountable for environmental damage wrought overseas. It is critical that the international community bring forward these reforms and that citizens in the US, UK and Europe demand that their governments enact new laws and lead the call for change.
Shareholders should actively challenge oil majors on their policies and exercise their powers to challenge IOCs on the devastation that they are wreaking on developing nations. Similarly, banks and financial institutions should insist that extractive activity in the developing world meet international best standards as a condition of financing, and apply these standards in assessing whether they will fund projects.
These measures cannot guarantee success. But taking them will help improve the odds. Most important of all is leadership.
In a public hearing at which this testimony was shared by a mother, the Commissioners promised to make her voice heard. And we are absolutely determined to honour that commitment.
The moral, practical and economic case for remediation and reform is overwhelming.
The IOCs have a duty to the people of Bayelsa and to posterity to alter their behaviour and clean up the appalling damage they have caused. They have a duty to prove through their actions that they truly believe that Bayelsan lives matter. Shareholders and banks have a duty to demand better behaviour from oil companies. The Federal Government has a duty to put in place a regulatory regime that will protect its citizens. International governments have a duty to ensure their companies treat host nations and communities with respect and do not behave in ways they would not countenance in their home markets.
The eyes of millions of people across Bayelsa, Nigeria and the world are upon those with the power to make change.