Nigerian farmers affected by oil pollution get green light to pursue case against Anglo–Dutch multinational as judges order release of key documents
Friends of the Earth activists hold a banner supporting civil action taken by Nigerian farmers whose livelihoods were affected by leaking pipelines in the oil-rich Niger delta. Photograph: Peter Dejong/AP
A Dutch appeals court ruled on Friday that Royal Dutch Shell can be held liable for oil spills at its subsidiary in Nigeria, potentially opening the way for other compensation claims against the multinational.
Judges in The Hague ordered Shell to make available to the court documents that might shed light on the cause of the oil spills and whether leading managers were aware of them.
“Shell can be taken to court in the Netherlands for the effects of the oil spills,” the court ruling stated on Friday. “Shell is also ordered to provide access to documents that could shed more light on the cause of the leaks.”
The case will continue to be heard in March 2016.
Judge Hans van der Klooster said the court had found that it “has jurisdiction in the case against Shell and its subsidiary in Nigeria”.
Shell’s Nigerian subsidiary, Shell Petroleum Development Company of Nigeria Ltd (SPDC), said in a statement: “We are disappointed the Dutch court has determined it should assume international jurisdiction over SPDC.”
“We believe allegations concerning Nigerian plaintiffs in dispute with a Nigerian company, over issues which took place within Nigeria, should be heard in Nigeria,” it said.
Shell has always blamed sabotage for the leaks, which under Nigerian law would mean it is not liable to pay compensation. But the Dutch court said on Friday: “It is too early to assume that the leaks were caused by sabotage.”
In January 2013, the district court in The Hague ruled that one of the farmers in the original suit was eligible for compensation from Shell’s Nigerian division for spills on his land in the Niger Delta, the heart of Nigeria’s oil industry.
The farmer appealed over whether the parent company should also be liable.
Friends of the Earth Netherlands director Geert Ritsema said Friday’s ruling meant the three other farmers could proceed with claims for compensation for income lost due to the spills.
“There are 6,000km of Shell pipelines and thousands of people living along them in the Niger Delta,” he said. “Other people in Nigeria can bring cases and that could be tens of billions of euros in damages.”
British Columbia’s Ministry of Environment said on Friday that the province’s new Greenhouse Gas Industrial Reporting and Control Act (GGIRCA) comes into force on Jan. 1, 2016, ensuring liquefied natural gas (LNG) facilities in B.C. have an emissions cap and “making them the cleanest in the world.”
The new act combines several pieces of existing greenhouse gas legislation into a single legislative framework, the environment ministry said in a statement. It includes the ability to set a greenhouse gas (GHG) emissions “intensity benchmark” for regulated industries, including LNG facilities, and enables the benchmark to be met through “flexible options,” such as purchasing offsets or paying a set price per tonne of GHG emissions that would be dedicated to a technology fund. “This will uphold the province’s commitment to having the cleanest liquefied natural gas facilities in the world,” the statement said.
Three regulations necessary to implement the Act are in effect Jan. 1, 2016: the Greenhouse Gas Emission Reporting Regulation; the Greenhouse Gas Emission Administrative Penalties and Appeals Regulation; and the Greenhouse Gas Emission Control Regulation.
The Greenhouse Gas Emission Reporting Regulation replaces the existing industrial Reporting Regulation and adds compliance reporting requirements, including specific requirements for LNG operations. Industrial operations will continue to report GHG emissions as they have since 2010, the ministry said.
The Greenhouse Gas Emission Administrative Penalties and Appeals Regulation establishes the process for when, how much, and under what conditions administrative penalties may be levied for non-compliance with the act or regulations. Fines range from $200,000 to a maximum of $1.5 million and a two-year prison term, or both.
The Greenhouse Gas Emission Control Regulation establishes the BC Carbon Registry and sets criteria for developing emission offsets issued by the province, the release said. The regulation also establishes the price ($25) for funded units issued under the act that would go towards a technology fund. Regulated operations, such as LNG operations, will purchase offsets from the market or funded units from government to meet emission limits.
Funded unit revenue that goes to a technology fund will also support the development of clean technologies with significant potential to reduce B.C.’s emissions over the long-term, the release said.
“LNG will play a significant role in the global climate solution as countries look for a cleaner, transition fuel to replace dirty fossil fuels like coal and gradually move towards 100% renewables,” said B.C. Minister of Environment Mary Polak in the release. “When nations choose LNG from British Columbia they will do so knowing ours is produced in the most environmentally conscious way. No other LNG-producing jurisdiction on the planet meets our high standards.” SOURCE
Slate Islands Provincial Park, Ontario. “The science is clear on what is required to safeguard boreal caribou populations,” says Dr. Justina Ray, executive director of Wildlife Conservation Society Canada.
Toronto – In its third annual review of government action to conserve Canada’s boreal woodland caribou, the Canadian Parks and Wilderness Society (CPAWS) finds there has been spotty progress – with too few jurisdictions showing significant leadership in protecting the species that long graced our 25-cent piece. Ontario is one of the jurisdictions CPAWS identifies as lagging in terms of action on the ground.
Under the federal Species-at-Risk Act, all provinces and territories are required to have plans in place to recover their boreal caribou populations by 2017, based on the 2012 Final Recovery Strategy for Boreal Woodland Caribou.
“In Ontario, we are deeply concerned that the situation for boreal caribou has not improved in the past 12 months,” says Anna Baggio, Director, Conservation Planning for CPAWS Wildlands League, the Ontario chapter working on large scale wilderness.
Across Canada, CPAWS observed positive government policy actions in 2015 on boreal caribou conservation in Saskatchewan and Manitoba. The organization also noted early positive signs of change in Alberta’s new government’s approach to boreal caribou habitat conservation, but gave all other provinces and territories much more mixed reviews, with the biggest concerns reserved for British Columbia and Ontario.
“We’ve had six years of promises and talking from Ontario and not one hectare set aside for caribou habitat protection,” says Baggio.
To draw attention to the ever increasing footprint industry has on caribou habitat and the Boreal Forest CPAWS Wildlands League is releasing a new video today showing impacts from mineral exploration in the Ring of Fire. While alarm bells are only starting to be rung about the consequences of industrial activities in the Far North, further south the situation is grimmer as at least 3 caribou populations are suffering a long-term decline. These are populations with long history of forestry, road building & other development.
“Collaboration among industry, indigenous groups, municipal leaders and conservation groups in north eastern Ontario is working and making a difference in the Kesagami Range,” says Dave Pearce, Forest Conservation Manager with the group. “In the north west, the situation is quite different” Pearce added.
Boreal Caribou occupy about 2.4 million km2 of Canada’s boreal forest – less than half of their North American range in the 19th century. The biggest threat to their survival is habitat fragmentation, which increases access by predators. Scientists consider boreal caribou as bellwethers of the health of the boreal forest, which also cleanses our air and water and stores vast amounts of carbon within its soils, moderating climate change.
In Ontario, boreal woodland caribou have lost about 40-50% of their original range. The species is considered threatened under Ontario’s Endangered Species Act and Canada’s Species-at-Risk Act.
“Until Ontario turns the tide on increasing disturbance in caribou habitat, the long-term survival of this species is in jeopardy,” Baggio said.
Contents from a tailings pond from the Mount Polley Mine is pictured going down the Hazeltine Creek into Quesnel Lake after a spill last August. (Jonathan Hayward/Canadian Press)
December 18, 2015. Following yesterday’s release of the B.C. Chief Inspector of Mines’ reporton the Mount Polley mine disaster, MiningWatch Canada is shocked by the disconnect between the Chief Inspector’s findings and his decision not to lay charges against Mount Polley Mine Corporation (MPMC) for its massive mine waste dam breach in August 2014 – the biggest mine spill in Canadian history.
“How can so many things be done so poorly, sloppily, or haphazardly, and result in massive damage, without someone being ‘at fault.’ It was not an ‘Act of God.’ The report makes is clear that it was poor design, poor practices, poor oversight, and misconduct on the part of Mount Polley Mine Corporation,” says Ugo Lapointe, Canadian Program Coordinator for MiningWatch Canada.
“It makes no sense. Either there were political reasons for the Chief Inspector to not lay charges against MPMC, or the regulatory system is even more broken then we all thought. Either way, it’s not reassuring for any of the mines currently operating in B.C.,” adds Lapointe.
“How can the Chief Inspector conclude there‘s no ground to lay charges while at the same time making dozens of very incriminating statements in his report against MPMC’s very poor practices and standards that led to the failure? It doesn’t add up.”
MiningWatch is also concerned that the Chief Inspector decided not to submit the evidence he had gathered to Crown Counsel. “By refusing to report the case to Crown Counsel, British Columbians are denied the right to know what the Crown Counsel’s assessment of the case would be, including whether to lay charges, and it could very well be much different from the Chief Inspector’s opinion,” says Lapointe.
“We are asking the Chief Inspector and the B.C. government to reconsider this decision and to report the whole case to Crown Counsel,” adds Lapointe.
MiningWatch also points out that the Chief Inspector’s legal analysis is solely and narrowly based on the BC Mines Act and its associated regulations, and not on any other laws or regulations, such as environmental regulations, common law, or professional due diligence requirements.
See below for further details on the Chief Inspector of Mines’ report.
For more information:
Ugo Lapointe, MiningWatch Canada (514) 708-0134
Mount Polley Mine Disaster: Excerpts from BC Chief Inspector of Mines’ findings from Investigation Report released December 2015
“…failure of the embankment occurred because of three proximate causes: an uncharacterized glaciolacustrine unit in the native soil foundation of the dam structure; an over-steepening of the downstream slope of the dam, coupled with the constructed height; and an unfilled excavation at the toe of the embankment at the site of the failure…” (p.6)
“MPMC and its engineering consultants did not fully recognize and manage geotechnical and water management risks associated with the design, construction, factor of safety, and operation of the tailings storage facility.” (p.6)
“Adequate studies of the embankment foundation were not conducted on the Perimeter Embankment, and site investigations for the Perimeter Embankment did not meet generally accepted standards of practice for embankment structures. There was an assumed degree of certainty that the foundation soils were dense and strong, which was not supported by a robust understanding of the foundation characteristics.” (p.6)
“Initial site investigations at the Perimeter Embankment foundation did not include adequate geotechnical characterization of soils at depth, and further, no subsequent site investigations were conducted on the Perimeter Embankment until 2011; drillholes were widely spaced and were principally for the placement of instrumentation and the assessment of lower glaciolacustrine soils. (p.6)
“Multiple opportunities to review and characterize the foundation soils arose, either in response to queries by Government inspectors, or available in extant drillcore records; but these opportunities were unnoticed, ignored, and/or discounted.” (p.7)
“An adequate water management plan did not exist. Mount Polley Mining Corporation failed in its management of the water balance with respect to long term planning, including site integration, effective treatment, discharge plans and permits. There was no qualified individual responsible for the water balance, and MPMC did not adequately characterize the risk of surplus supernatant water” (p.7)
“It was the responsibility of Mount Polley Mining Corporation to maintain a safe structure, irrespective of the Mine’s reliance on external geotechnical engineering expertise. Mount Polley Mining Corporation did not meet this responsibility.” (p.7)
“Mount Polley Mining Corporation did not recognize the risk of the excavation for the buttress foundation, resulting in a small reduction in the FoS. This work was not recognized as a substantial departure from the approved work plan by MPMC, and the Chief Inspector was not notified.” (p.7)
“Concerns regarding steep slope, dam construction material availability, buttress subexcavation, and supervision were identified by employees but not elevated for action by MPMC management.” (p.7)
By Angela Fritz, reposted from the Washington Post, Dec 15, 2015
The warmest November on record by an incredible margin,according to NASA measurements. The global average temperature for the month was 1.05 degrees Celsius, or about 1.9 degrees Fahrenheit, warmer than the 1951 to 1980 average. It’s also the second month in a row that Earth’s temperature exceeded 1 degree Celsius above average.
It was just in October that our planet first exceeded the 1-degree benchmark in NASA’s records, dating to 1880. Prior to that, the largest anomaly was 0.97 degrees Celsius in January 2007.
The recent measurements become even more significant in light of the recent Paris accord, in which 196 countries boldly agreed to limit the planet’s warming to “well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 degree Celsius.” The extraordinary warmth of October and November helped push this year well-past the 1-degree benchmark.
We have known that 2015 is all but certain to be the warmest year on record, though we did not know by how much it would be. Given the November report, 2015 will eclipse last year as the warmest year on record by a huge margin.
With Nov update to GISTEMP, probability of 2015 being a record year is > 99.999% pic.twitter.com/eotioDrFSC
The Japan Meteorological Agency, which tracks the increasing global temperature, also concluded that last month was the warmest November on record since 1890, relative to the period from 1981 to 2010.
(Japan Meteorological Agency)
El Niño played a large role in November’s — and the year’s — exceptional warmth. El Niño is an event marked by abnormally warm ocean temperatures in the equatorial Pacific. The extent of the warm water is huge this year, stretching from the west coast of South America to past the international dateline, which divides the Pacific Ocean. As of November, temperatures in parts of this vast region were running as much as 4 degrees Celsius, or about 7 degrees Fahrenheit, above normal.
But the Pacific Ocean wasn’t the warmest region of the globe in November — much of the warmth measured by NASA emanated from the Arctic, where temperatures were running anywhere from 4 to 10 degrees Celsius (7 to 18 degrees Fahrenheit) above average. SOURCE
Angela Fritz is an atmospheric scientist and The Post’s deputy weather editor.
Lisa Lindsley, Eugene Kung and Rueben George outside Kinder Morgan headquarters in Houston in July 2015. Photo courtesy of Tsleil-Waututh First Nation.
As the world wakes up to a new global climate agreement, it’s time for energy and pipeline companies companies to start communicating with investors on how such changes will impact their investments.
In Canada there are two major considerations post-COP21: new policies on carbon, and Indigenous legal rights to the land.
Kinder Morgan— the owner of the Trans Mountain pipeline expansion project that traverses Alberta and British Columbia— is a prime candidate for updating their investor communications to reflect these rapidly evolving investment risk issues.
One of their recent investor conferences focused on the shifting prospects of their business model, and was entitled “With Change Comes Opportunity.” In spite of their apparent love of change, company management has failed to fully and properly address the linked issues of climate change policy and Indigenous legal rights in their Canadian business unit.
Lack of disclosure on these two material issues creates a misleading picture of the company’s business prospects. This is dangerous for investors.
Assessing Kinder Morgan’s “Aboriginal Policy”
The company’s approach to Indigenous legal rights, outlined in their Aboriginal Policy, suggests that senior management’s grasp of Indigenous land claims and associated inherent legal rights in British Columbia is about as well-informed as Disney’s Pocahontas.
The policy begins:
“Kinder Morgan Canada is committed to working with Aboriginal communities in a spirit of cooperation and shared responsibility; and building and sustaining effective relationships based on mutual respect and trust to achieve respective business and community objectives.”
These are fine sentiments, but they are not followed with any pertinent analysis. This is not surprising, as to date the company has been reading investors the kindergarten version of Indigenous legal rights.
In the past, Company spokesperson Ali Hounsell has indicated that Kinder Morgan “has engaged in meaningful consultation with 133 First Nations to date over the project,” and “deeply respects Aboriginal rights and title in Canada.”
If Ms. Hounsell were to accurately report to investors on the status of the company’s engagement with Indigenous landowners—after re-reading the Supreme Court of Canada’s Tsilhqot’in decision— she would have to provide an update.
Ms. Hounsell needs to report that the goalposts for project approval have shifted from consultation with Indigenous land owners towards consent from those same owners. She then needs to outline how Kinder Morgan’s consultation practice will change to reflect this development in Canadian constitutional law.
It’s now time to toss out simplistic clichés and good-will fairy tales and provide more in-depth, legally accurate information. The reality of Indigenous land rights in Canada might come as a shock to those investors who have thus far restricted themselves to reading the company’s corporate reporting on these issues.
In particular, the ears of Kinder Morgan shareholders should prick up at the following passages on consent stated in Tsilhqot’in:
“Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward. For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.” (At paragraph 92, emphasis added.)
“Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.” (At paragraph 97, emphasis added.)
The Tsleil-Waututh Nation, the “People of the Inlet,” whose reserve sits less than two miles across Burrard Inlet from the pipeline terminus and Westridge marine terminal have indicated their unequivocal opposition to the project. They conducted an independent assessment of the project, have identified the project as illegal according to their own laws, and made it clear that they do not consent to the project.
Trans Mountain’s response appears to be tone deaf to the legal risks it faces from First Nations opposition. In its public communications, the company has indicated that:
“…like the Tsleil-Waututh, Trans Mountain appreciates the need for a healthy Salish Sea, and we are committed to safe and environmentally responsible operations. As always, Trans Mountain stands by our commitment to engage with First Nations and invites Tsleil-Waututh Nation to come to the table and engage in clear productive conversation.”
If the directors of Kinder Morgan and other pipeline proponents like Enbridge do not properly communicate the nature of these legal risks to shareholders, they could be leaving themselves open to liability under Canadian and U.S. securities law.
Annual report fails to adequately describe the scope of Indigenous land rights
By neglecting to explain the constitutional legal rights of BC Indigenous communities to block the Trans Mountain project, Kinder Morgan could be failing to provide accurate information to investors. The annual report indicates that the company:
“… generally do[es] not own the land on which our pipelines are constructed. Instead, we obtain the right to construct and operate the pipelines on other people’s land for a period of time. Substantially all of our pipelines are constructed on rights-of way granted by the apparent record owners of such property.”
In the case of unceded Indigenous land in British Columbia, the “apparent” and actual record owners do not agree with Trans Mountain’s expansion plans. This was communicated loud and clear to Kinder Morgan management by Tsleil-Waututh leader Rueben George last May, when he indicated that “Tsleil-Waututh will never consent to the Trans Mountain project — because it will destroy our culture, our way of life and our spirituality.”
In spite of this clear communication from the landowner, the company provides no details to investors on opposition by Indigenous landowners or the long list of legal challenges discussed above.
Kinder Morgan’s discounting of demand destruction under a 1.5 degree target scenario
Reference to the business impacts of climate change in Kinder Morgan’s annual report is similarly scant and includes outright contradictions. At one point the company indicates that: “Climate change regulation at the federal, state, provincial or regional levels could result in significantly increased operating and capital costs…”
Later on in the same report, the almost exact opposite statement is provided: “[T]he timing and location of climate change impacts is not known with any certainty and, in any event, these impacts are expected to manifest themselves over a long time horizon. Thus, we are not in a position to say whether the physical impacts of climate change pose a material risk to our business, financial position, results of operations or cash flows.”
If the company knows that climate change regulation could materially impact their business prospects, is it not obvious that this policy will be tightened in response to physical climate change risks? Financial regulators should be demanding more accurate communication to investors.
Judging from statements by the leaders of almost every country in the world last Saturday, and the global scientific community, there does appear to be certainty on a range of physical climate change impacts that are already manifesting themselves.
The wording of Kinder Morgan’s annual report is almost exactly the same as that appearing in Peabody Energy’s own inadequate financial reporting on climate change risk. If Kinder Morgan has been cutting and pasting from Peabody’s misleading SEC filings, investors should worry.
Responsible investors should exercise their legal right to access accurate information
Increasing the cost of capital through more stringent enforcement of existing environmental regulations in British Columbia or Alberta, in addition to action on the federal government’s stated commitment to a 1.5 degree emissions budget target, could all have immediate impacts on the company’s business prospects.
Especially in light of the New York Attorney General’s enforcement action against Peabody Energy on its dubious climate risk disclosure, Kinder Morgan management and other pipeline proponents should consider providing shareholders with full and fair disclosure of all material risk information relating to operations on Indigenous land on Canada’s Pacific coast.
In fact, as owners of the company, shareholders have a right to know how the company plans to adapt to a low-carbon economy, address Indigenous land rights, and preserve shareholder value in the process.
Investors need better information from companies like Kinder Morgan and Enbridge.
by Brent Patterson, reposted from Canadians.org, Dec 17, 2015
TransCanada has filed with the National Energy Board an amended application for the 1.1 million barrels per day Energy East pipeline.
The Canadian Press reports, “Environmental groups were quick to dismiss TransCanada’s updated plans, saying the pipeline that would transport carbon-intensive oilsands crude could not be built now that the Trudeau government has committed to a climate plan that combats global warming. ‘The climate math for building Energy East doesn’t add up’, said Andrea Harden-Donahue of the Council of Canadians.”
That’s because the Energy East pipeline would produce at least 32 million tonnes of greenhouse gas emissions and allow for a 40 per cent expansion of the Alberta tar sands. Researchers at University College London have concluded that 85 per cent of the tar sands would have to be left in the ground to limit global warming to 2 degrees Celsius. That study specified that no more than 7.5 billion barrels of oil from the tar sands can be produced over the next 35 years. The proposed Energy East pipeline alone would exceed that carbon budget within about 19 years. A 1.5 degrees Celsius target would mean even fewer barrels of oil could be extracted from the tar sands and shipped via Energy East.
The news report adds, “The group is one of 100 that has asked the federal government to halt pipeline reviews until it assesses the review process.” We have stated, “The Liberal government promised to reform the broken National Energy Board process for reviewing pipelines, including those already under review. Yet Natural Resources Minister Jim Carr recently commented in a Globe and Mail article that Kinder Morgan’s Trans Mountain expansion and TransCanada’s Energy East pipeline projects will not stop while changes are made. To add your voice to the demand that the pipeline reviews be halted, please click here.
There are some significant implications to the revised application that had previously been signaled. On Dec. 6, Harden-Donahue wrote, “As revealed during a recent community liaison committee with TransCanada (these committee meetings are not open to the public, a source of much criticism) TransCanada plans to double the oil storage capacity at the same Red Head location from 7.6 million barrels to 13.2 million barrels. The tanks themselves will increase in number from 18 to 22, with the new tanks holding 600,000 barrels each, at the height of a 6 story building.”
And the Canadian Press highlights, “The Conservation Council of New Brunswick expressed concern that the revised plan would mean increased tanker traffic through the Bay of Fundy and along the East Coast and would increase the risk of oil spills along the route.” Their media release specifies, “TransCanada’s revised Energy East pipeline application filed today would more than double the number of oil tankers carrying tar sands oil through the Bay of Fundy and down the coast of the United States from 115 to more than 280 per year. Meanwhile, more than 75 per cent of the total pipeline capacity – or more than 800,000 barrels per day - would be exported out of one marine terminal, in Saint John.”
In its media release announcing its application, TransCanada stated that the revisions in its application were “based on extensive landowner, environmental, community and customer input”. And they note, “Pipelines remain the safest and least greenhouse gas intensive way of transporting crude oil to market. The Energy East Pipeline will have the capacity to displace the equivalent of 1,570 rail cars of crude oil per day to Eastern Canada.”
But communities continue to reject the pipeline and a recent report by Oil Change International highlights, “While rail will be used as a high cost backup for existing production, our cash-flow models show that the additional cost of shipping tar sands by rail can turn a typical tar sands project from a money maker to a loser (based on EIA [US Energy Information Administration] forecasts of oil prices). In almost all cases, development of new projects is therefore highly unlikely to be considered without secure pipeline capacity. Expanded rail transport cannot be considered a given either given growing public and political opposition.”
Once the National Energy Board deems TransCanada’s application complete, a 15-month deadline is set for the regulatory agency to make a recommendation on the pipeline to the federal cabinet. If the National Energy Board were to find the application complete, for instance, in February 2016, it would need make its recommendation on the pipeline by May 2017.
The company expects to have the pipeline in operation by 2020.
For more on our campaign to stop the Energy East pipeline, please click here.
Angela Fritz is an atmospheric scientist and The Post’s deputy weather editor.
