Shell gas exploration in South Africa – case heads back to court
Coastal communities and NGOs must return to court as Shell, Impact Africa, and the minister of Mineral Resources and Energy seek leave to appeal the judgment that stopped Shell and Impact Africa’s unlawful oil and gas exploration right off the ecologically sensitive Wild Coast.
The Wild Coast communities and environmental NGOs that recently won a landmark judgment setting aside the exploration right that enabled Shell to conduct seismic survey explorations for oil and gas off the ecologically sensitive Wild Coast must return to court following the lodging of three applications for leave to appeal.
On 20 September, Impact Africa lodged an application for leave to appeal the Makhanda High Court ruling, and the Minister of Minerals and Energy and Shell lodged similar applications today (22 September).
The judgment
The judgment of three judges of the Eastern Cape High Court on 1 September 2022 found that the granting of the exploration right and its implications had not been made known to affected communities and that “the mere ticking of a checklist” did not constitute meaningful consultation.
The court set aside the decision to grant the exploration right on the basis that it was procedurally unfair, but also noted that it failed to pass muster on several other grounds, including the failure to take account of relevant information, including climate change and the right to food, a failure to take account of the Integrated Coastal Management Act (ICMA), and the failure to comply with various legal requirements such as the requirement to create opportunities for historically disadvantaged people to participate in the minerals and petroleum industries.
The court found that the Department of Minerals and Energy had failed to consider the communities’ spiritual and cultural rights and their rights to livelihood, the potential climate change implications, and the anticipated harm to the marine and bird life along the Eastern Cape coast.
It held that Impact and Shell bore the onus of showing that the precautionary principle should not be applied when experts differed on whether the adverse impacts of the seismic surveys were adequately mitigated.
The applicants
The application was brought by Wild Coast residents and fishers, the Dwesa-Cwebe Communal Property Association, and the NGOs Sustaining the Wild Coast NPC and All Rise Attorneys, who were represented by the Legal Resources Centre and Richard Spoor Attorneys.
They were joined by Natural Justice and Greenpeace Africa, represented by environmental law firm, Cullinans and Associates, which had launched the first application to interdict the seismic survey.
Grounds of appeal
Shell, Impact Africa and the minister are seeking leave to appeal on various grounds. Notable, they argue that the public had been properly notified of the decision to grant the exploration right and that the court should not have allowed the decision to be challenged so long after it was made.
They also argue that the court was wrong to deal with exploration as a step in a single process that culminates in the production and combustion of oil and gas and was incorrect in applying the precautionary principle to the expert evidence on the harms of seismic surveys.
Shell also argues that the court was wrong to conclude that the public statements made by Minister Mantashe gave rise to a reasonable apprehension of bias and that lodging an appeal to him would have been an exercise in futility.
“Seismic blasting poses an immediate threat to South Africa’s rich marine life, but the eventual extraction and use of oil and gas likely to follow such exploration will have even more profound impacts. It would be critical to focus instead on renewable and natural energy sources and leave the oil in the ground and the gas beneath the sea,” said Cullinan and Associates attorney, Ricky Stone.
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