Truth be told. Listening for stories in the courtroom

Obiozo Ukpabi. In October 2020, a remarkable case was heard in a civil court of Higher Appeal in The Hague. Four Nigerian farmers and fishers[1], who together with Dutch NGO Milieudefensie filed a lawsuit to hold Royal Dutch Shell accountable for massive environmental pollution caused by oil spills in their villages in the Niger Delta, got their day in court. Due to the corona-pandemic restrictions, they could only be present via videolink. After twelve years of litigation, it is hard to imagine how they must be feeling in anticipation of the Judge’s ruling which is scheduled for 29 January.

An earlier ruling of the court in 2015 determined that the parent company of the transnational corporation can face civil proceedings in The Hague for the actions and omissions of its overseas subsidiary, opening up far-ranging opportunities for more transnational corporate accountability claims in Dutch courts and elsewhere. Yet the final ruling decides whether in this case Royal Dutch Shell is held liable and compelled to clean up the oil spills and remediate the resulting damage, pay financial compensation and improve the maintenance of oil pipelines and wellheads to prevent future spills. This will determine the weight of the precedent set by this case in future transnational environmental litigation.

‘With regards to the issue of duty of care to prevent sabotage, I believe that it is quite telling, if I may use that word, that there has never been such a ruling in a Nigerian case…’[2]

The lawyer for the transnational corporation’s defence pronounces the word telling with extra care, and in English, in contrast with the rest of his argument which is delivered in Dutch. As if he knows its impact to be particularly potent. An efficient device to demonstrate to the Judge and everyone else here that surely, anyone who has been paying attention must understand that this story about human rights has no place here. Not in this courtroom, where the issues to be decided on are simple: damage, property, liability, compensation.
The judge interrupts the defence lawyer to ask about the human rights violation that was acknowledged in a previous case, on which there was a ruling. The defence interjects that there is ‘no basis provided in this case where an alleged human rights violation would give grounds for civil liability’.

A number of different stories are being told in the courtroom on this first day of a hearing that has been in the making for twelve years. We know some of them, have reproduced, resisted or analysed them. Stories about economic growth and progress, environmental pollution, fossil fuel extraction, inclusive or sustainable development, petro-capitalism and consumerism, corporate social responsibility, third-party intervention, social license to operate, climate change, injustice, resistance, crisis, catastrophe, hope. Stories about marginalised communities defending their rights, corporations being held accountable, people taking responsibility for historical, structural wrongs, and the wellbeing of generations still to come.

Donna Haraway said that we urgently need to create new stories. I was asked as part of an assignment for the graduate program here at the University of Humanistic Studies which I would choose between describing the world or changing it. Inspired by Haraway I answered that we cannot change anything without retelling our world.

‘We need to take seriously the acquisition of that kind of skill, emotional, intellectual, material skill, to destabilise our own stories, to retell them with other stories and vice versa. […] It matters to destabilise worlds of thinking with other worlds of thinking.’[3]

For the highly-skilled (and no doubt, well-paid) defence lawyer quoted earlier, the unprecedented nature of the proposition, the ruling sought by the audacious claimants, is exactly why this story should be dismissed. The powerful corporation that he represents is not looking to destabilise anything, quite the opposite.

The truth of the story is in the telling, they say. As an observer in these hearings in the Higher Appeals Court of The Hague, which despite the corona pandemic I was able to attend through a livestream connection, I was not listening for truth but rather for the telling. Here, I believe, can be my influence as a researcher. Not as reproduction or representation, but as generative action. Telling as the creative, imaginative practice that it is – notwithstanding what the fancy defence attorney may think – to break open not only discursive space, but action space and system space and think things different into being.

The claimants tell a different story. It is complex, there is not one villain, one hero in this story. Where it all began is diffuse, but the harm is clear. It is carried in their bodies, their families and homes. In the present and the past. In the yet-to-be-born. The claimants have joined forces across communities and continents.

Acknowledging not just the harm in their own lives, the land and the water, the bakery, the poultry farm, the fields, the boats, the sacred places, but in the air, the atmosphere, the ecosystems that we are connected to with everyone and everything.

Yet, how can one really clarify the harm done without inevitably circumscribing it? For the purposes of the legal claim it is measured and expressed into figures, remediation effort and time. But the effects of the damage from crude oil seeping into the ground and water, poisoning crops and water, disrupting already precarious livelihoods, displacing whole communities, while unfamiliar diseases continue to claim lives, are hardly quantifiable. Two of the farmers and fishers who originally started the litigation have since passed away. Perhaps the rawest truth being told by this twelve-year struggle to obtain redress is that the corporation has all the time in the world.

[1] The original claimants were Elder Friday Alfred Akpan, Eric Dooh, Chief Fidelis A. Oguru and Alali Efanga
[2] From the authors notes, taken during court hearing of Akpan v Shell in The Hague on 8 and 9 October 2020