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Shell on collision course with Senate
From Alifa Daniel, Abuja
LAST Wednesday, the Senate showed that its patience was exhausted with the Shell Petroleum Development Company (SPDC). Despite their exchange of letters, the oil company failed to comply with resolutions passed by the National Assembly.
The Senate on August 2003 empowered its two Committees on Niger Delta and Petroleum (Upstream), to ensure that SPDC complied with the resolution over its continued non-compliance with the recommendations of the Legal Advisory Panel on the petition by Ijaw Aborigines of Bayelsa State against the company.
From Ogoniland, and lately the Ijaw people, the question is how to erase the company from the oil map of Nigeria. The Ijaw people have through their representatives in the National Assembly indicated that the Ogoni treatment would be meted to Shell if they refuse to meet the demands of the people for $1.5 billion.
According to Senators John Brambaifa, Inatimi Spiff and James Manager, the decision of the National Assembly was communicated to Shell in a letter signed by the Senate President Adolphus Wabara and Speaker of House of Representatives, Aminu Masari.
The senators said the Senate resolved to put measures in place to bring Shell to book, as it was necessary to brief the world of the implications of non-compliance.
The House of Representatives on May 26, 2003 passed a motion asking Shell to pay compensation to the Ijaw for oil spillage on their land.
According to the senators, "consequent upon a petition filed with the Lower House by the Ijaw Aborigines of Bayelsa State, a legal advisory panel of a retired Chief Justice of Nigeria, two retired Supreme Court Judges, and a senior advocate was constituted." The panel was to study Shell's 60 years of operation in Bayelsa and determine the level of health hazard, human deprivation, hardships, deaths etc and recommend ways of amelioration and re-mediation.
The panel was requested to look into the 107 queries raised by the House of Representatives Committee on Public Petitions and the reaction by SPDC Limited to the queries. It was also required to recommend conditions and for Shell's operations as well as adequate compensation for the Ijaw aborigines of Bayelsa.
After the panel work, the House resolved:
- that SPDC is liable to pay compensation to the petitioners on the oil spillages and pollution that have occurred over the years.
- that the President should urgently set a panel consisting of scientists, environmental specialists, medical doctors, and jurists to conduct a research to determine the authenticity of the claim that oil pollution causes terminal illness such as cancer.
Brambaifa said that the disregard Shell showed to the House of Representatives' Resolution 1993 prompted the Ijaw Aborigines to appeal to the Senate for intervention. After the Senate debated the petition on August 24, 2004 it resolved that:
- the recommendations of the Panel on the investigative hearing on the petition by the Ijaw Aborigines against SPDC as presented to the House on May 22, 2003 be implemented.
- that SPDC shall commence the payment of $1.5 billion to the Ijaw Aborigines as compensation for severe health hazard, economic hardship, injurious affection, avoidable deaths and sundry maladies the petitioners have suffered as a direct or indirect consequence of multiple spillages occurring in SPDC's facilities, which span the entire eight local councils of Bayelsa since they started operations in the area in 1956 as follows:
- while $1 billion to be paid forthwith, $500 million is to be paid over five years in five equal instalments of $100 million yearly starting not later than a year after the payment of the initial $1 billion.
The senators said that the Senate Compliance Committee held a meeting with Shell on November 2, 2004. The Managing Director of Shell, Mr. Basil Omioyi led his staff to the meeting, where he promised to state the position of Shell on or before November 23, 2004.
But on November 11, he sent a first letter, which questioned the modus operandi of the Senate and read according to some senators like a study on procedures for passing legislation and resolutions.
"I refer to your letter dated October 27, 2004, my subsequent meeting with you on November 2, 2004, and the letter dated August 26, 2004 signed by the Senate President and the Speaker of the House of Representatives, titled "National Assembly Concurrent Resolution on the recommendations of the Legal Advisory Panel on the Petition by the Ijaw Aborigines of Bayelsa State against Shell Petroleum Development Company.
"As promised at the meeting, SPDC has, in its capacity as operator of the NNPC/Shell/AGIP/Elf Joint Venture, and on behalf of the JV partners, now concluded deliberations on the above subject matter and come to a firm conclusion after having carefully studied the report and recommendations of the Legal Advisory Panel, that the panel's report and all the recommendations contained therein are totally unacceptable to SPDC and its JV partners.
"This is because due process was not followed, as the panel did not give SPDC an opportunity to be heard before arriving at its conclusions and recommendations. In consequence, SPDC is unable to accept a legislative resolution that is based on such a fundamentally flawed premise."
He pointed out that unlike the resolution of the Lower House, which recognised the need for a multi-disciplinary panel to determine the authenticity of the claims, the Senate Resolution appear to have glossed over the effect of the opinion of the Department of Petroleum Resources (DPR). This report by the regulatory authority in the oil and gas sector, stated that the DPR would not identify with the conclusions in the scientific study. The resolution of the House did not mention the recommendations of the Advisory Panel on the payment of $1.5 billion or any other sum. Rather it required SPDC to pay compensation "on the oil spillage and pollution that have occurred over the years," which responsibility we have always fulfilled to the extent of our legal liability.
It is for the above that Shell and its partners is unable to accede to the demand of complying with the Senate resolution on the recommendations of the legal panel.
Shell's legal firm of Okocha and Okocha wrote to the Senate and its position was not fundamentally different from the MD's.
The legal counsel stated: "Please be informed that our clients have duly considered the contents of your said letter. And they have found no legitimate basis whatsoever for the resolutions passed by the House of Representatives and the Senate on May 28, 2003 and August 24, 2004, respectively. Our clients say further that they find themselves unable to comply with the said resolutions, and they have accordingly rejected the same in their entirety. Pursuant thereto, our clients have accordingly written to the chairmen of the Senate Committee on Niger Delta and the Senate Committee on Petroleum Resources (Upstream) to notify them of the position of our clients and their joint venture partners on the matter."
They stated further that in 2002, their clients were invited before the House of Representatives Committee in Public Petitions on allegations raised by a hitherto unknown organisation, the Ijaw Aborigines of Bayelsa State. The group demanded $1.5 billion for payment of compensation for "atrocities allegedly committed by our clients in their operations in some communities in Bayelsa."
They also noted that their clients in a letter to the House committee responded to the baseless allegations and forwarded their response to a 107-point questionnaire raised by the committee on the matter.
However, on March 27, 2002 and May 21, 2002, after its appearance before the House committee, the committee said it would engage other professionals to review the toxicology reports received, and that the parties would thereafter be invited to appear before the committee for further hearing on the matter. "No such invitation was ever received by our clients to appear before the committee," the lawyers said.
They said that in May 2002, about 10 members of the said House committee, led by the chairman, Abayomi Mayegun, visited some of the communities mentioned in the petition to verify the evidence of environmental degradation.
The counsel observed that the House committee appointed a legal advisory panel, which submitted a report to the said committee. The report whereby, as reported in some print and electronic media, it was falsely alleged that our clients had been ordered to pay compensation in the sum of $1.5 million to some unnamed oil producing communities in Bayelsa said to be represented by the petitioners.
Part of the anger is that their clients "were not ever invited to appear before the said Legal Advisory Panel, and neither did they appear before or make any representation to the Panel, before it made the recommendations contained in its report to the House Committee."
The counsel were worried that reports on the said recommendations of the Advisory Panel was capable of creating false and misleading impressions, and elicit untoward incidents from the restive youths of the communities in Shell's areas of operation.
They noted that despite a letter on March 24, 2003, requesting that the House of Representatives or its Committee take immediate steps to clarify issues in public, neither the House nor its Committee issued the public statement.
But the House on May 28, 2003, purported to adopt a resolution:
- That SPDC is liable to pay compensation to the petitioners on the oil spillage and pollution that have occurred over the years; and
- that the President should urgently set up a panel consisting of scientists, environmental specialists, medical doctors and jurists for the purpose of conducting a wider and detailed research work to determine the authenticity of the claim that oil pollution causes cancer.
The letter continued: "in your letter dated August 26, 2004, which was only received by our clients on the October 18, 2004, and which letter was jointly signed by the Senate President and the House Speaker, you have alluded to what you described as a "Concurrent Resolution" of the National Assembly. We have closely reviewed the Resolution adopted by the House of Reps on May 28, 2003, and we are satisfied that the same cannot in any wise be said to be concurrent. As a matter of fact, the Senate Resolution dated August 24, 2004, which purported to focus on the Report of the Legal Advisory Panel, is totally at variance with and cannot be said to have concurred with the House of Resolution dated May 28, 2003. And besides the glaring inconsistencies, we have noted that the House of Representatives did not make any recommendation or pass any resolution based on the Report of the Legal Advisory Panel, to which report the Senate Resolution dated August 24, 2004 stands contrary and at variance.
"The foregoing notwithstanding, it is pertinent to observe that the matters raised in the petition of the so-called Ijaw Aborigines were for compensation for damages allegedly caused by oil spillage. Those are matters, which we humbly submit should be seen as outside the jurisdiction of the National Assembly. They are matters within the competence and jurisdiction of the courts, which have the judicial powers. As it were, all the activities embarked upon by both the House of Representatives and the Senate as aforesaid, and the Resolutions passed in that regard, have proceeded contrary to the due process of law, as enunciated in the Constitution of the Federal Republic of Nigeria, 1999. They are accordingly null and void, and of no legal effect whatsoever."
The lawyers insisted: "For the avoidance of any doubt, we state that our clients have rejected the said Resolutions in their entirety, and so have they also rejected the demand contained in your letter under reference for their compliance with the same."
The Senate considered the letters arrogant. Senators Manager, Spiff and Brambaifa said if the Representatives of the people of Nigeria at the highest level passed a unanimous resolution at both Houses and signed by the presiding officers, it carried the weight of law.
Piqued by the stance of Shell, the senators said: "The activities of Shell in the Niger Delta are very much like the framework of apartheid that they funded and fuelled in South Africa. This time around their activities in the Niger Delta is far worse.
"The Senate Committee on Niger Delta is already in possession of incontrovertible evidence that Shell's activities over the period of their operation in the Niger Delta is counter-productive in maintaining peace in the region.
"Therefore the Committee on Niger Delta is ready to start full-scale investigations of the activities of Shell in the region as it affects the livelihood of the people of the Niger Delta and the economy of Nigeria. This investigation will involve calling for memoranda from the public in Nigeria, Britain, Holland, the U.S. and South Africa.
"It is pertinent to mention here that the investigation will be precise, thorough and pungent. In this regard, the Committee will take a closer look at the circumstances that has led to the continuous closure of oil wells in Ogoniland, which has deprived the country from earning income for some decades. Also important in this exercise is the level of environment degradation and pollution that have impacted on the lives of the people of the Niger Delta.
"Meanwhile, it is pertinent to state that the State Committee on Compliance within the next few weeks will make a comprehensive report on the whole saga and will possibly recommend sanctions on Shell's operations in the country. The committee will not hesitate to use its diplomatic channels to ensure that any member of Shell's international board who participated in the crimes perpetrated by Shell in the Niger Delta in the last six decades will be identified, exposed and brought to book."
They promised that the Compliance Committee of the Senate would urgently but carefully build a documentary framework that will be presented to Senate for the formal sanctioning of Shell for disobeying its resolution. Meanwhile, the Senate Committee on Niger Delta will carry out investigations into the activities of SPDC in the Niger Delta. The senators expect that by next week, the Senate would descend on Shell.
With the battle line drawn, the next few weeks would be dramatic if Shell continues to be "arrogant" and the Senate remains adamant.
They promised that the Compliance Committee of the Senate would urgently but carefully build a documentary framework that will be presented to Senate for the formal sanctioning of Shell for disobeying its resolution. Meanwhile, the Senate Committee on Niger Delta will carry out investigations into the activities of SPDC in the Niger Delta
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