9.2.7 Ruling on gas flaring

Gas flaring is considered notoriously detrimental to the environment and the people living in its vicinity. According to a report of an NGO, more gas is flared in Nigeria than anywhere else in the world; it is estimated that 40 per cent of all of Africa's natural gas consumption in 2001 was flared off in Nigeria. The loss of potential earnings to Nigeria corresponds to around US$2.5 billion a year.1 In fact, routine gas flaring was first outlawed in Nigeria by a law approved in 1984. However, this had no immediate effect on company practice. In particular, SPDC made a commitment in 1996 to end gas flaring of associated gas by 2008. Nigeria's President Obasanjo had agreed on this voluntary deadline with the oil companies.2 This required SPDC to prepare a plan to collect and put to economic use the gas otherwise flared from its network of 73 flow stations. It also entailed a commitment not to develop new oil fields without a clear plan for the utilisation of the associated gas. In 2007, however, SPDC admitted that it could not meet the 2008 deadline. They claimed that the target was predicated on the joint venture's programme being fully funded to deliver the required Associated Gas Gathering Projects, which was not achieved due to reduced funding of the programme.3

The controversial issue of gas flaring was the subject of a decision by the Federal High Court of Nigeria, Gbemre v. Shell Petroleum Development Company Nigeria, dated 14 November 2005.4 The case was brought up by the minority Iwherekan community, with the support from Environmental Rights Action, the Nigerian branch of the NGO Friends of the Earth. The claims were directed against SPDC and NNPC, as co-defendants, and against the Attorney-General of the Federation. Similar suits were commenced by seven other minority communities, including Ogoni ethnic groups.

In this case, Justice C.V. Nwokorie decided that the gas flaring in the course of the oil exploitation and production activities of SPDC and NNPC violates the rights to life and dignity as provided under articles 33(1) and 34(1) of the Nigerian Constitution and reinforced by articles 4, 16 and 24 of the ACHPR,5

which guarantee the right to a clean poison-free, pollution-free and healthy environment.6 He ordered the companies to stop such further practice in this community immediately and the Nigerian Government to take immediate action.

This judgment is in line with the 2001 ruling of the AHRC (vide section 9.2.4), that appealed to the Government to compensate the Ogoni for abuse against their lands, housing and health caused by oil production including flaring by multinational companies. In its annual report, Shell asserted that the procedures followed by the High Court did not allow witness testimonies, expert evidence or cross-examination. SPDC appealed the judgment, which was granted, and filed a stay of execution of the judgment. In a press release, SPDC explained having already spent US$2 billion to reduce and eventually phase out the practice of gas flaring in 2009.7 This explanation clearly did not satisfy the NGO Milieudefensie, a branch of Friends of the Earth. It decided to start an 'anti-gas flaring campaign' against Shell on 30 April 2007 by creating a 15-meter high flame in front of Shell's headquarters in The Hague, the Netherlands.