Cape Town — The David and Goliath battle of climate activists against plans by Shell has resumed in South Africa. The case, which in February 2022 saw the High Court in Makhanda dismiss the oil giant and Mineral Resources and Energy Minister Gwede Mantashe's application for leave to appeal a ruling that temporarily halted a seismic survey off the Wild Coast in the Eastern Cape province, is significant as its outcome will determine the wellbeing of South Africa's ocean environment and the livelihoods of rural Eastern Cape communities.
It also determines where the nation will take its fight against climate change, coming in the wake of deadly floods in KwaZulu-Natal attributed to the current climate crisis and an announcement there are no plans for the nation to discontinue the use of coal as part of the country's energy mix. Between May 30 and June 1, three judges in the High Court in Gqeberha heard arguments about whether to review and set aside a decision by the department of mineral resources and energy to award a seismic exploration right to the petroleum giant.
After the hearing, Natural Justice (NJ) - a non-profit organisation dedicated to the protection indigenous peoples and local communities' rights - held a webinar to reflect on the case and what kind of action would be needed to address possible outcomes. Katherine Robinson, the head of campaigns for NJ, hosted the session and opened by handing it over to Priyanka Naidoo of the Legal Resources Centre to provide some brief history and an overview of the case.
Overview of the case
"Those of you who've been following the case would remember that in December 2021, communities along the Wild Coast approached the Makhanda High Court to interdict or stop Shell and Impact Africa from carrying out a seismic survey which essentially involves a ship towing a high volume airgun which blasts sounds towards the seabed at regular intervals in order to look for oil and gas," Naidoo said.
The reason the communities went to court was summed up by Naidoo. "Firstly, the Wild Coast is a delicate ecosystem that is made up of the ocean, marine and bird life and, importantly, people who fish and rely on those waters to feed themselves and make a modest living. Any mining company who seeks to conduct [oil] exploration must consider the impact of these activities on the ecosystem as a whole, including the applicant communities.
"Secondly, the applicant communities allege that Shell's failure to get the correct environmental authorisation required under our law will potentially cause irreparable harm to marine life in the area and subsequently affect their [the communities'] livelihoods, their constitutional and customary rights."
Naidoo went on to say that expert evidence was presented to the court to say that the noise levels released into the ocean by seismic scanning are higher than any sound made by marine life and are exceeded only by undersea volcanic eruptions and earthquakes. Naidoo said that an interim interdict was successfully obtained in December 2021. "In the judgment, which was Part A of the interdict, Judge Bloem stated that Shell was under a legal duty to meaningfully consult with the communities who would be impacted by the seismic survey and that, based on the evidence provided, Shell failed to do so."
Part B of the case revolved around Shell's permit to conduct the survey and was examined over three days ending on June 1 in the Gqeberha High Court, Naidoo concluded.
Examination of Part B
Naidoo handed over to her fellow panellists to reflect on Part B of the matter. Melissa Groenink, an attorney of the High Court of South Africa, specialising in environmental and planning law, presented several of the major arguments presented before the court, starting with Shell's failure to consult with communities along the Wild Coast. Groenink explained that Shell's consultation process was flawed in that it didn't adhere to constitutional principles or just administrative action via the national environmental management act.
The requirement of environmental authorisation was also a major argument heard in the case, Groenink said. "Essentially, Shell is relying on the fact that Impact Africa obtained its exploration right prior to its environmental authorisation." Groenink said in the process of environmental management, a large difference can be found in what an environmental programme or plan seeks to achieve and what obtaining an environmental authorisation seeks to achieve.
"They are not the same. They cannot be conflated to be the same thing … You simply cannot strike a line through what's set out in the law and replace an environmental management programme with environmental authorisation," Groenink said.
Shell's authorisation was granted after an Environmental Impact Assessment was conducted in 2014. This, however, was done well before fishers in the Eastern Cape were granted 15-year rights to conduct small-scale fishing in 2019 by Minister of Forestry, Fisheries and the Environment Barbara Creecy. This "loophole" was used by Shell saw for its own benefit, as detailed in this interview with Aaniyah Omardien, an environmental activist and the founder and director of the Beach Co-op non-profit organisation.
Climate change was the next headline argument the court heard, according to Groenink. She clarified that there would not merely be a six-month level of impact from Shell's actions on the environment. "The reality is that the intention of the seismic survey is ultimately to exploit oil and gas resources that they find. There's a reason they're conducting seismic surveys in these particular blocs. They're expecting to find oil and gas, and they're certainly hoping to find commercially exploitable reserves," Groenink said.
Groenink emphasised the long-term impact of Shell's potential energy finds by saying that South Africans are feeling the effects of the climate crisis in their day-to-day lives. This may be evidenced by the deadly floods that racked KwaZulu-Natal and parts of the Eastern Cape, and which led to a declaration of a national disaster by Ramaphosa after an assessment of the damage.
If a proper impact assessment had been done at the time the exploration right was granted, Groenink continued, all of these impacts should have been considered with the conclusion being that they would have been unacceptable resulting in the failure to grant any exploration rights or environmental authorisation.
Groenink concluded by saying that one of the many factors that were not considered is the requirements under the Integrated Coastal Management Act. "This act requires any organ of state that is dealing with the management or regulation of the ocean environment to consider the interests of the whole community," Groenink said. These include marine species together with coastal communities which, Groenink said, required taking an ecosystem-like approach to determine what is in the best interests of affected communities.
A flawed consultation process
The session moved to Johan Lorenzen, an attorney at Richard Spoor Inc. Attorneys in Johannesburg who elected to examine some of the arguments Mineral Resources and Energy Minister Gwede, Shell and Impact Africa made in court before setting them before some of the session's panellists to hear their responses.
Council for Minister Mantashe, Shell and Impact Africa said that consultation was sufficient merely because notices were put in newspapers, Lorenzen summarised. He posed whether this was a sufficient avenue of alerting the public to Nonhle Mbuthuma, spokesperson of the Amadiba Crisis Committee of the Xolobeni community on the Wild Coast.
"Honestly, it was so unfair. It tells me we still need to do a lot of work when it comes to consultation as a law. There is more than one way of doing consultation. Transkei is known as as a very rural area. If developers come to Transkei or the Eastern Cape, they research how they may communicate with the people of the province. It's clear to me Shell did not do that.
"Using newspapers in a traditional community like ours was an insult honestly; go to any spaza shop, you won't find a single newspaper. How did they expect people in the rural communities to access newspapers?" Mbuthuma said. It should be noted that no notices were posted in isiXhosa either, the first language of most living in the Eastern Cape.
Mbuthuma also emphasised that the primary means of conveying information was word-of-mouth among communities.
Painting communities as 'anti-development'
Lorenzen moved on to Wilmien Wicomb of the Legal Resources Centre, saying: "There was a suggestion from the companies that these communities are just raising objections because they are anti-development and, of course, Minister Mantashe infamously accused these communities of being colonialists and apartheid supporters."
"There are two answers specific to the case and a broader question one must look at. In the context of this case, if we accept these communities are all anti-development, that's, unfortunately, not relevant. The law does not require Minister Mantashe and/or Shell or Impact to only consult people that agree with their development. The fact that they are completely opposed is not relevant, they must still be spoken to and their concerns taken on board," Wicomb said.
She said the next question to consider would be whether Mantashe would be bound by the community's decision if they told him they didn't want the seismic survey to continue under any circumstances. "The applicants didn't make that case here. They told Minister Mantashe why they don't want the survey and all of that must be part of the decision."
Wicomb referred to Mantashe's accusatory statements. "They became relevant to the case because Shell and Impact Africa and, indeed, the Minister made a big deal out of the fact that the communities could have first gone to Minister Mantashe to do an internal appeal and they should not have run to court.
"In light of those statements, the communities rightfully said that those remarks were absurd, particularly in light of trying to get a minister to accept an internal appeal given his bias," Wicomb said.
On the broader question alluded to earlier, an "important note" had to be made, said Wicomb. "My understanding is that these communities are not anti-development, they are against this kind of development which is decided upon in Pretoria and which benefits a few, most of all, the corporations," Wicomb said, adding that the communities are, rather, pro-sustainable development, particularly on decisions that concern their own wellbeing.
The path forward
Lorenzen posed the question of when a court decision would be made and asked Naidoo what the next course of action was. "The usual time frame for delivery of judgment is within three months," Naidoo said. "We were not given an indication at the end of the hearing as to when we could expect a ruling but given the complexity of the case and how large the record was, we're likely to get it at the end of that three-month period." Speaking on what the public may do next, Naidoo said that there is a great opportunity for them to now support small-scale fishing communities.
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Lorenzen turned to Sinegugu Zukulu, Programme Manager for Sustaining the Wild Coast, and asked, win or lose, where the legal battle with Shell would go next. "If we allow these oil giants to do as they wish, to make profit and line their pockets, the reality is that that is taking us close to the end of life on this planet.
"If we lose, the future is about how we appeal. It is for that reason we call on the public to understand that what we are doing is for everybody, even those shareholders who seek to profit out of exploiting the oceans."
Zukulu summarised by saying that the greatest danger posed by the "Goliath" of oil giants that he and fellow climate activists are dedicated to fight is that the large-scale harm environmental exploitation risks not just to the current population but future generations as well.
Communities' defiance and the rise of global temperatures
Host Robinson, head of campaigns for NJ, turned to Thandile Chinyavanhu, an environmental and social activist, and energy campaigner for Greenpeace Africa, to share what the atmosphere outside the courtroom had been and to reflect on the political and environmental context from which the case was being heard.
"I think what's become clear in the past few days outside the courtroom is the strength of the communities and their resilience. They have been very clear about what they want - they want to be consulted and this reverberated into the courtroom," Chinyavanhu said, adding that the communities' marching and demonstrating was their taking a stand against the oil giants who treated them as an "afterthought".
Robinson asked Pooven Moodley, a human rights Lawyer and social justice activist, why, despite calls for greater cuts in oil and gas exploitation in light of rising global temperatures based on climate science, there appears to be a greater push - both locally and globally - to speed up oil and gas usage across the continent.
"What's becoming clear, even through IPCC (the Intergovernmental Panel on Climate Change) reports that there are certain calculations and trajectories, we realise the picture is much worse than what was painted," Moodley said. "This is what scientists are saying and why some are now protesting."
According to Moodley, one of the latest reports noted that a global temperature rise of 1.5°C was only something foreseen for the distant future. However, this has been revised to occur within the next five years. Further, the International Energy Agency, a conservative body, Moodley said, concluded in a report that no new oil and gas facilities or coal mines should be developed as this would definitely negate a net-zero emissions target by 2050.
