On 17 May 2024, Wild Coast communities and supporting organisations will be in the Supreme Court of Appeal to defend the groundbreaking High Court judgment which set aside Shell's exploration right to explore for oil and gas off the Wild Coast of South Africa.
In September 2022, Shell, Impact Africa, and the Minister of Mineral Resources and Energy (DMRE) lodged applications for leave to appeal the Makhanda High Court ruling, which was handed down on 1 September 2022 to resounding celebrations.
The High Court case
The court case was brought in December 2021 by Sustaining the Wild Coast NPC, Wild Coast communities, Wild Coast small-scale fishers and All Rise Attorneys for Climate and the Environment NPC, represented by the Legal Resources Centre (LRC) and Richard Spoor Incorporated. Natural Justice and Greenpeace Africa, represented by environmental law firm, Cullinan and Associates, subsequently joined the case.
The case sought to review the decision by the DMRE to grant an exploration right to Shell and Impact Africa, allowing them to conduct exploration activities off the Wild Coast coastline.
In the Makhanda High Court, the communities and supporting organisations argued that the right should not have been granted because:
- There was no consultation with affected communities and the companies' consultations with traditional leaders was insufficient.
- The decision-makers failed to consider the potential harm to the fishers' livelihoods, the impact on their cultural and spiritual rights and the contribution of oil and gas exploitation to climate change.
- The decision-makers failed to comply with the requirement of the Integrated Coastal Management Act to consider the interests of the entire community – including fishers and ocean life.
The High Court Judgment
The Makhanda High Court found in favour of the applicants on all of the grounds of review.
The judgment found that there was no meaningful consultation with communities, and that consulting traditional leadership is not sufficient. It further found that because there was no definitive information on the harms to the environment, when deciding whether to grant the exploration right, the DMRE should have used a precautionary approach.
With regard to the harms that could be caused by the seismic testing, the judgment acknowledged the key role of the ocean in the livelihoods, and spiritual and cultural life of coastal communities. The harms to these religious and ancestral beliefs and practices should have been taken into account.
In relation to climate change as well as the issues of the right to food, the judges found that, had the DMRE taken these issues into account, they may have found that the project was "neither needed nor desirable".
The judgment also found that the decision-makers had unlawfully failed to consider the requirements of the Integrated Coastal Management Act.
The judgment also rejected the arguments of Shell and the DMRE Minister that the case should not proceed because the applicants had not used internal processes to appeal against the granting of the exploration right. The court agreed that by the time the applicants heard it had been granted, the commencement of the seismic survey was imminent, and furthermore that the DMRE Minister had shown himself to be biased in favour of Shell.
Notably, the judge stated that Shell's Environmental Management Programme (EMPr) contained statements promising jobs and increased government revenue. However, these claims were not supported by evidence in the EMPr. This was particularly important as Shell argued that the applicant communities are poverty-stricken and would benefit economically from oil and gas exploitation.
This judgment set the decision of the DMRE aside.
APPEAL ARGUMENTS
Shell, Impact Africa and the DMRE Minister are appealing the judgment on various grounds.
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 the DMRE Minister gave rise to a reasonable apprehension of bias. The High Court found that lodging an internal appeal with the DMRE before approaching the High Court would have been an exercise in futility.
THE CROSS-APPEAL
In the Makhanda High Court, a declarator was sought stating that Shell needed an environmental authorisation, as required under the National Environmental Management Act (NEMA), before commencing with the seismic survey. Shell had argued that, because the exploration right was granted prior to the December 2014 enactment of NEMA's listed activities requiring environmental authorisation for exploration activities, they did not need an environmental authorisation; and their environmental management programme was sufficient, despite the renewal of the exploration right taking place after the enactment of NEMA's listed activities.
The High Court declined to rule on the declarator as they had set aside the exploration right and, therefore, had concluded that the applicants had obtained a substantial part of their relief. However, the communities and supporting organisations believe that the declarator plays an important role in the advancement and protection of constitutional rights. They have launched a cross-appeal in the Supreme Court of Appeal, asking the court to rule on this, should it differ from the High Court in respect of its finding on the exploration right.
QUOTES
"It's more important and urgent than ever that we safeguard Mother Earth. We hope the SCA rules to protect her." - Nonhle Mbuthuma, Amadiba Crisis Committee and recent Goldman Environmental Award Prize winner
"In this case, we are raising very critical issues that are fundamental to our wellbeing and the wellbeing of the planet. These are environmental rights, the right to a safe and healthy environment as guaranteed by the Constitution. Our right to be consulted is not only guaranteed by legislation but also by the Constitution, and also by International law principles, such as the right to self determination and right to Free Prior and Informed consent. The reality of the climate change impacts we are already experiencing are all very critical to this case. We are hopeful that judges shall do due diligence to consider all these matters." - Sinegugu Zukulu, Sustaining the Wild Coast and recent Goldman Environmental Award Prize winner
"The judges of the High Court came to the aid of Wild Coast communities, to give effect to the law in a manner that upholds and protects their human rights. The impact of the judgment is far-reaching, advancing the rights of many of other coastal communities. A finding any other way would be Constitutionally regressive, and we are confident that the Supreme Court of Appeal will uphold the decision of the High Court. The persistence by Shell, Impact Africa and the state to overturn the judgment is a clear indication that these entities care more about corporate gains than upholding the rights of communities." - Melissa Groenink-Groves, Natural Justice
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"The judgment handed down by the Makhanda High Court represents a monumental victory for environmental justice and community empowerment. It underscores the critical importance of meaningful consultation with affected communities and the imperative to consider the broader ecological and social impacts of extractive projects. This decision sends a powerful message that the rights of coastal communities, their cultural heritage, and the integrity of our marine ecosystems cannot be sacrificed in pursuit of profit-driven agendas. Greenpeace Africa stands in solidarity with the Wild Coast communities and all those fighting to protect our planet for future generations." - Greenpeace Africa (Cynthia N Moyo, Climate and Energy Campaigner, GPAf)
"The High Court Judgment is a progressive judgment that will be referred to and cited for many years to come. It confirms the need to involve communities in decisions affecting them; to understand and accept cultural and spiritual practices; to acknowledge the importance of protecting our marine environment; and acknowledges the climate impact of exploration in that it ultimately results in the production and combustion of oil and gas. We trust that the Appeal Court will dismiss the appeal and give declaratory relief as sought by the applicants in the cross appeal." - All Rise Attorneys
"The well-reasoned judgment of the full bench of the Eastern Cape High Court made headlines around the world. We are confident that the Appeal Court will uphold it and reiterate that the dangers posed by climate change require that decisions to authorise exploring for, or exploiting, oil and gas must be made with great care and in strict compliance with the law." Ricky Stone, Cullinan and Associates
