The Eastern Cape High Court sees little prospect of success for Shell to have an earlier court ruling denying its bid to conduct seismic surveys off the Eastern Cape coast overturned, but says the matter is of sufficient public interest to warrant a hearing at the Supreme Court of Appeal (SCA).
The court handed down judgment on Tuesday (13 December) granting Shell, Impact Africa and the Minister of Mineral Resources and Energy leave to appeal to the SCA.
It said it made this decision because issues of such public importance should be heard before the higher courts.
There are nine applicants in the case, including non-profits Sustaining the Wild Coast, All Rise Attorneys for Climate and the Environment, Dwesa-Cwebe Communal Property Association, Natural Justice, and Greenpeace.
The respondents are the Minister of Mineral Resources and Energy, the Minister of Environment, Forestry and Fisheries, Shell Exploration, and Impact Africa.
Earlier this year, environmental and community activists won a major victory against Shell and the Minister of Mineral Resources and Energy when the same court declared that exploration rights allowing Shell to conduct seismic surveys off the Wild Coast were unlawful. Those rights had been extended twice since 2014.
An interdict against the seismic surveys was granted in December 2021 on the grounds that affected communities had not been properly consulted.
In reaching that decision, the court considered the potential for lasting damage to the surrounding ocean, as well the impact on the spiritual and cultural life of nearby communities.
Having won an interdict against Shell, the applicants approached the court to review and set aside the minister’s original decision to grant the rights.
Among the arguments for putting a stop to the surveys was the ecological importance of the area, and the fact that although Shell and Impact Africa secured an approved Environmental Management Programme under the Mineral and Petroleum Resources Development Act (MPRDA), this is not equivalent to environmental authorisation under the National EnvironmentalManagement Act (NEMA).
The latest decision has been celebrated by environmental and community groups that have taken on the minister and Shell in a multi-year legal struggle.
“We are not surprised by the outcome today,” said Melissa Groenink-Groves, an attorney at Natural Justice, one of the applicants in the case.
“The court granted the leave to appeal on the basis of public importance. This case is critical for setting important judicial precedents relating to oil and gas exploration.
“This case deals with what constitutes meaningful public participation, and the importance of considering impacts of oil and gas developments relating to climate change, cultural heritage, and the interests of the whole marine community,” she said.
“We are strong on the merits and welcome the Supreme Court of Appeal’s consideration of this matter.”
‘Binding precedent’ expected
Cormac Cullinan of Cullinan & Associates, representing two of the nine applicants in the case, believes the SCA will uphold the earlier judgment of the Eastern Cape High Court and establish important precedents that bind all other high courts.
“It is particularly important that the SCA uphold the rights of both the public, and those most directly affected, to participate in decisions regarding new fossil fuel projects and ensures that no offshore exploration or drilling is authorised in the absence of a full consideration of the climate change implications, the potential impacts on marine species and people who depend on coastal environments, and a consideration of whether or not these projects are necessary and desirable.”
Wilmien Wicomb of the Legal Resources Centre said in a post-judgment webinar in September that the case was about the lawfulness of the minister’s decision to award Shell an exploration permit in 2014, and to subsequently renew it.
Shell argued that it had engaged extensively with a range of interests, including community leaders.
The court found that this was a relic of the colonial past, and consulting with communities requires more than meeting local leaders.
Communities are made up of individuals, and it is these individuals who must be consulted.
The court went into some detail about what engagement with communities means, and that it should not be a tick-the-checklist exercise. There was also little evidence before the court of Shell’s claims that the project would bring enormous income and prosperity to the area.
Mantashe ‘hardly unbiased’
One of Shell’s arguments was that its opponents had no right to approach the court as they had not exhausted their internal remedies under the Promotion of Administrative Justice Act.
The applicants responded that Minister of Mineral Resources and Energy Gwede Mantashe could hardly be considered an unbiased agent in view of his avowed support of the seismic survey programme when he declared in 2021:
“We consider the objections to these developments as apartheid and colonialism of a special type, masqueraded as a great interest for environmental protection.”
Read: Shell seismic tests approval complied with rules – Mantashe [Jan 2022]
The applicants argued that they followed the letter of the law in consulting with the public, and cannot be held to higher standards than that.
“The communities and NGO partners also sought leave to cross-appeal the court’s decision not to consider whether Shell and Impact Africa required an Environmental Authorisation prior to commencing their seismic survey,” says a statement issued on Tuesday by the communities and NGOs opposed to Shell’s seismic surveys.
“This is because a declarator will provide clarity on the scope and nature of the obligations under [NEMA], as well as the MPRDA, which will then give effect to Section 24 of the Constitution.”
The ‘cross-appeal’ by the applicants was also granted in Tuesday’s ruling.
The SCA is expected to hear the matter in 2023.