How politics of OML 11 reignites Ogoni resistance against expropriation
Groundswell opposition to Rivers State government’s acquisition of Shell Petroleum Development Company (SPDC) interest in Oil Mining Lease (OML 11) has once more turned Ogoni into the epicentre of fierce resistance to expropriation of natural resources by the state.
Citing irreconcilable differences between Ogoni and SPDC, and not wanting other purchasers to buy SPDC’s 45 percent interest in OML 11, which was auctioned because of the company’s N194bn judgment debt owed Ejama/Ebubu community in Eleme, the Rivers State Government said it had weighed in and purchased the oil company’s interest.
Shortly after the civil war ended in 1970, Ejama/Ebubu community in Eleme Local Government Area was rocked by a massive explosion. The petrified residents suddenly saw from a distance a massive fireball that erupted at a high-pressure crude oil pipeline owned by SPDC. The fire was sustained by a geyser of crude oil that shot into the air.
Within a few hours, pipeline ruptured thousands of barrels of oil spill into an approximate area of 255 hectares of arable agricultural land, with fishing swamps and rivers devastated. The spill was said to have killed a man who was going to tap palm wine, as well as animals, fishes, birds, and reptiles. The spill area was a scene of sheer ecological carnage.
SPDC took responsibility for the oil spill and paid some compensation to the community to the tune of N300, 000.00 sometime in 1986 and promised remediation of the area to no avail.Irked by SPDC’s lack of corporate environmental accountability and environmental abuses, Ejama/Ebubu community, in 1999, decided to sue the company to seek appropriate redress for environmental injustices inflicted on their land.
The lawsuit commenced at the High Court of Rivers State, Nchia Division. At the end of the trial, the Court ordered SPDC to pay N1bn to the community, and clean up the spill or pay N6bn in lieu thereof.SPDC appealed the judgment, but during pendency of the appeal, the jurisdiction of the State High Court was taken away and donated to the Federal High Court by a subsequent Supreme Court judgment.
The Ejama/Ebubu community conceded Shell’s appeal without a formal hearing.But irrespective of the substantial economic power disparity between the transnational oil giant and the mostly poor Ejama/Ebubu peasants, they continued to put forth spirited demand for justice.
In 2001, a fresh lawsuit was filed at the Federal High Court, Port Harcourt against SPDC and its parent companies – Shell of Netherlands and Shell of United Kingdom. The case passed through four different justices of that Court until Justice Buba J delivered judgment in June 2010.
SPDC then gave a Bond Guarantee, stipulating that First Bank of Nigeria would pay Ejama/Ebubu community the value of the judgment debt and interests thereon, in the event that its appeal to the Court of Appeal failed.
SPDC and its parent companies appealed the judgment in 2010. This passed through six different panels and in 2017, SPDC lost the appeal. But after losing the appeal, SPDC instructed First Bank to dishonour their guarantee, which it did. This gave rise to a series of six different litigations in various courts against First Bank and the Central Bank of Nigeria (CBN).
Determined to protect its interests, SPDC and its parents companies approached the Supreme Court in 2017 to
reverse the two judgments against them. But the apex court in a judgment read by Justice B. Akaahs, affirmed the appellate court’s verdict.
All this while, SPDC had reneged on payment of the judgment debt on the ground that it had lodged an appeal at the Supreme Court. The enforcement cases had been to Owerri, Abuja and Lagos, among others in six different lawsuits. But on January 11 2019, Shell’s appeal was dismissed at the Supreme Court.
Governor Nyesom Wike said the judgments of the High Court, the Court of Appeal and the Supreme Court were registered in the United Kingdom for enforcement over there against SPDC parent companies domiciled outside Nigeria’s shores.Realising that Ejama/Ebubu community had commenced enforcement of debt by domiciling the judgment in the State High Court, it was alleged that SPDC offered them N7bn as against N194bn. Afterwards, the community once more filed a suit for an
order to sell SPDC’s immovable property comprised in OML 11 and their Kidney Island support base in Port Harcourt, which the court granted.
It was on this basis that Governor Wike said rather than fold his hands and watch other persons or group purchase SPDC’s 45 percent interest in OML 11 Ogoni oilfields, which produce about 250,000 barrels per day of its crude oil potentials, he would wade in and bid for the stake, which was auctioned and purchased by the state.
Wike said: “Therefore, I directed the Rivers State Ministry of Finance Incorporated to make a bid of USD150, 000, 0900 supported by a Bank Guarantee and cash payment to the Deputy Sheriff in the sum of N1bn, the latter payable to the judgment creditors, while the former is escrowed.
“I have further directed relevant government agencies to take immediate steps to liaise with any financially capable company to partner with Rivers State Government to ensure that the said oil field come on stream within 15 months. “In line with our commitment to accelerated development, industrial harmony and security, the Rivers State Government will graciously concede some portion of its 45 percent equity interest to all the oil producing communities within OML 11 to enhance mutual ownership, participation and sharing in the benefits of these resources.”
However, Ogoni activists and groups, who for years have assiduously fought for environmental justice, strongly disagreed with Rivers State’s seemingly altruistic acquisition of Ogoni much-detested SPDC.Professor Ben Naanen, an expert in economic history told The Guardian that there is a lingering suspicion that the acquisition might just be a private interest masquerading as public interest.
Naanen said he reckoned that the State government was acting in error, as the basis of such acquisition does not exist. Especially since acquisition of the bloc, particularly the Ogoni oilfields, has been a major bone of contention between Ogoni people and Shell. He contended that it was absurd for the governor to say he has acquired Ogoni oilfields in OML 11 on behalf of Ogonis because there was no way the people were going to accept a proposition that clearly short-changed them.He said: “The Ogoni’s perception of the whole thing is different. The agreement was being made so that they could be co-owners. Remember it is the operatorship that we have been looking at. If the State government acquires that, who are they going to give to operate the oilfield? People are quite apprehensive that there are some interests behind this whole thing, and that Ogoni people will be expropriated to serve some private interests.
“Ejama/Ebubu is one of the oilfields in Ogoni. How can you seize the assets of the entire people just because of contention in one oilfield? It will not happen. I think that should not be used as a subterfuge to expropriate the Ogonis. Seizing the assets of Ogoni people is inexplicable, it is untenable.” Naanen said recent experiences have taught Ogoni people a number of lessons that make it difficult to trust the State. He cited the controversial banana plantation farm in Ogoni, where some private interests were involved and yet the state seized the people’s land in the name of government, though it was actually not a government project.
“We know the politics of oil in this country,” he said. “This could be a veneer for some other interests, which we cannot identify right now. But I think that the whole thing is not altruistic at all. We were very surprised. He had not spoken even a word to Ogoni people, when he made the announcement.
“And I think if he respected the people, he would have at least held a meeting with the representatives of Ogoni people before making that announcement. I feel that announcement is insensitive and disrespectful.” The Movement for the Survival of the Ogoni People (MOSOP) has urged the state to recognise that international human rights law affirmed the rights of ownership of indigenous peoples over their lands, territories and natural resources.
MOSOP President, Legborsi Saro Pyagbara and Secretary-General, Anthony M. Porole, said the secrecy and inconsistencies surrounding the purported acquisition of OML 11, without the knowledge of critical institutions such as the Department of Petroleum Resources (DPR), Ministry of Petroleum Resources and Nigerian National Petroleum Corporation (NNPC), makes it legendary and leaves much to be desired.
In a petition to President Muhammadu Buhari, Secretary-General, United Nations, Mr. António Guterres and others, MOSOP maintained that the Ogoni people have always insisted that they are stakeholders in the ownership, exploitation and utilisation of the natural resources in their land. And it was in pursuance of this position that a committee was set up to establish a template that would be the basis of petroleum operation in Ogoniland.
“All purported midnight acquisitions, divestment or licensure of the Ogoni oilfields without broad consultation and agreement with the Ogoni people are null and void and cannot stand. Ogoniland is not for sale. The inalienable resources of Ogoniland cannot be expropriated by private interests masquerading as public interest,” they said.
MOSOP reiterated that any future discussion about resumption of oil production in Ogoniland must address the issue of benefit sharing between the community, government and the prospective oil company, the issue of community participation in the entire value chain of the industry and the emplacement of a clear environmental management plan for the fragile Ogoni ecosystem.
“If the Governor was trying to dance on the misery and penury of our fellow compatriots from Ejama/Ebubu community, who have endured a long struggle against Shell since 1992 without any government support, then the dance steps are indeed faulty and the drummers living in fairyland” they said.
Convener of Ogoni Solidarity Forum, Celestine Akpobari, said the decision of Rivers State government to unilaterally acquire oilfields in the land of a people, who for decades have been exposed to ecological terrorism as lucidly depicted by the United Nations Environment Programme Report on Ogoniland, smacks of insensitivity to the people’s tragic history.
He explained that the fundamental issues responsible for the non-production of crude oil in Ogoni oilfields go beyond the problem between Ejama/Ebubu community and Shell, and the protracted litigation and counter litigation.
He said: “We lost over 2,000 people in our struggle. He should be very sensitive to know that the stakes are so high in Ogoni. It is not like any other oilfield and of course, this is 21st century. You cannot just wake up one morning and hear that one oilfield in your backyard has been given to one Danjuma or one Wike in the 21st century. Oil no longer belongs to government. Oil belongs to the people, who have come to know this, because over 50 years of oil exploration has not given them anything.”
He emphasised that Ogoni people have been unhappy with Rivers State government since the execution of Ken Saro-Wiwa and eight others, because of the role it played.“What Governor Wike has done was to open a wound that was healing and put pepper in it. The problem surrounding OML 11 Ogoni oilfields has not been resolved and our demands met. Our people are wounded in their heart,” he said.
On his part, Gani Topba, the National Coordinator, the Conscience of the Ogoni People (COOP), argued that Rivers State government could not purchase non-existent oilfields because the so-called Shell stake has since expired. And to this end, the proposal was dead on arrival.
“What the Governor is trying to do is to undermine the power of the President, who is the Minister of Petroleum, who listened to Ogoni people’s cry and all the issues surrounding OML 11, and refused to renew Shell’s licence. As of today, no stake exists, as there is no licence.
“The 100 percent equity of OML 11 has returned to the Federal Government, through NNPC. So, if there is anything to be done, the Minister will engage with Ogoni people and leaders. And Ogoni matter has a template— the Ogoni Bill of Rights.”
He urged Royal Dutch Shell to commence investigation of its top Nigerian personnel that may be conniving with persons with vested political interests, who deliberately want to acquire one of the country’s most prolific oilfields.
Topba argued that, if the governor’s action was altruistic, he should have intervened in the dispute between Ejama/Ebubu community and Shell, by simply converting the N194bn judgment debt to acquire Shell’s interest on behalf of Ogonis, who have suffered environmental injustice since the 1960s.
But the regent of Ejama, Emmanuel Oluji, said after years of seeking justice, his people are exhilarated over the acquisition of Shell’s interest in OML 11.He said: “We are happy with it. If this is how we can get our money, we are happy. We have been struggling for over 30 years on this matter. So, if through this angle we can get our money, no problem. All we want is our money. And if the state government has done that, it is okay.”
Oluji, who recalled how in 1970, crude oil spill devastated his community, lamented that a lot of the people that started the legal battle against Shell have passed away, and yet the company has remained insouciant to the community’s predicament.He said: “People like us who were small boys then grew to inherit the problem. Shell came to our communities in 1957/58, and there is nothing to show for their presence other than devastation of our farmland and streams.
“Whichever way we get our money is our concern because we are not going to process the oil. We are happy that the governor sympathises with us. The site is devastated. We cannot use it for anything.”
The regent lamented that his people’s quality of life has deteriorated systematically over the years, due to environmental hazards caused by the 1970 spill. He said: “Underground water up to 100 feet remains contaminated till date. When Chibuike Amaechi was governor, he decided to give us emergency water. So, tankers supplied us water. Even if you sink a borehole, it is crude oil contaminated water you get. Our stream is polluted. We cannot fish again. We are not happy, which was why we went to court. Since 1957 till date, no Ejema person is employed in Shell. No scholarship for anybody.”
The counsel to Ejema/Ebubu community, Mr. Emma Asido, explained that Rivers State government’s acquisition of Shell’s interest was legal and binding.He narrated that after Shell lost its appeal at the Supreme Court in 2019, Ejema people had the judgment registered at the High Court of Rivers State in pursuant to 287 (1) of the Constitution that enjoined all courts and all persons to enforce the Supreme Court’s judgment.
According to him, the community, through the Deputy Sheriff’s office, tried to enforce the judgment by attaching Shell’s movable properties at its industrial office area in Old Aba Road, Rumuobiakani in Port Harcourt. But scores of soldiers and policemen deployed there prevented them from taking anything outside the premises.
“So, the Deputy Sheriff left and we had to put in an application on notice, which was served on Shell for leave to sell their immovable properties in this case at Marine base, called Kidney Island and their interest in OML 11. Shell does not own OML11. It is Federal Government’s asset.
“It is only a percentage of the stake that Shell owns, which is 45 percent. So, a High Court of Rivers State, having heard the matter in 2019, granted judgment creditors prayers that immovable properties could be attached and sold to the extent of Shell’s interest,” he stated.
Asido said after a while and there was no further representation from Shell, the High Court went ahead to auction those assets— Kidney Island and Shell’s interest in OML 11, and Rivers State bid for it and was successful at the public auction, held in the
High Court premises.
Responding to Ogonis’ vehement opposition to the acquisition, the legal counsel said their feelings are well respected, knowing what they have passed through. He, however, added that in this case, the Petroleum Act and the Minerals Act have vested all resources sub-surface to the federation of Nigeria under the control of the Federal Government.
He said: “Now, Federal Government cannot exploit these resources, which is why they go into joint ventures with multinational companies like Shell. So, the asset belongs to the Federal government. Now, the Federal Government called on Shell and said, we will give you 45 percent if you help tap this oil from the bowels of the earth, and so Shell is not the owner. They only have an interest, which is clearly located in the 45 percent of production.”He stated that Rivers State Government merely took advantage of the public auction to acquire Shell’s 45 percent stake. The counsel said the argument that Ogoni stakeholders needed to have been consulted first, may be short of the extant laws of the land.
Asido emphasised that the acquisition is largely to Ogoni people’s advantage more than it is to any other part of Rivers State, since Ogoni occupies a position of OML 11.
According to him, the acquisition will benefit Rivers State by bringing about more development in all the oil-producing communities.He explained that since only N1bn was realised from the public auction, Shell was still clearly indebted to Ejama/Ebubu community to the tune of over N193bn as at August 2019.
When contacted, Shell Media Manager, Mr. Bamidele Odugbesan said: “The announcement by Rivers State Government was in respect of SPDC’s assets, which form part of a matter pending in court. So, we are unable to make further comments.”But Asido said anybody could file any nuisance value application or process in a court of law. He noted that leading to the judgment of the Federal High Court in 2010, Ejama/Ebubu community had to countenance well over 45 nuisance value applications intended to scuttle the trial.
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