Court asked to stop Shell’s seismic tests once and for all

Local community members and supporters of Sustaining the Wild Coast and Greenpeace celebrated a court victory outside the Eastern Cape High Court in Makhanda in September 2022.

• The Constitutional Court has been asked to put an end to the exploration right granted to Shell to do seismic testing off the Wild Coast.
• Wild Coast communities and environmental justice organisations have asked the Court to rule against a decision by the Supreme Court of Appeal earlier this year.
• The Supreme Court gave Shell the chance to renew its application which had previously been set aside by the Makhanda High Court.

Wild Coast communities and environmental justice organisations want the Constitutional Court to put an end, once and for all, to the exploration right granted to Shell which allows it to conduct seismic testing in the environmentally- sensitive waters off the Wild Coast.

Earlier this year the Supreme Court of Appeal (SCA) heard an appeal by Shell, Impact Africa and the Department of Mineral Resources and Energy (DMRE), in which they sought to overturn a Makhanda High Court ruling setting aside the exploration right, which had been granted in 2014 and renewed twice. The Supreme Court ruled that the Makhanda ruling was correct. But it suspended this ruling pending the outcome of a third renewal application by Shell, which was submitted in July 2023.

It is the legality and fairness of the suspension that the communities, Sustaining the Wild Coast, All Rise Attorneys, Natural Justice and Greenpeace Africa (the applicants) want the Constitutional Court to consider and rule on.

In their application, filed last week, they argue that the High Court had found that the exploration right had been granted unlawfully because there had been no proper notification and consultation with affected communities. Their rights to food and livelihood from the ocean and their spiritual and cultural rights had been ignored, as had climate change impacts.

These findings had been upheld by the SCA in Shell and the minister’s unsuccessful appeal.

However, the SCA had ruled that a complete setting aside of the exploration right was “too harsh”, giving Shell a new opportunity to renew the right.

The applicants, in their argument, say there was no need for this, and that it is not just and equitable, as is required by the Constitution.

They say the order is an attempt to give Shell the chance to make up for its failed consultation process when it applied for the right over a decade ago and the law “does not allow such a late redemption”, which is constitutionally impermissible and legally incompetent.

They say the SCA order did not protect the right of communities and other parties to fair administrative action. It also failed to give clarity on what Shell and the minister must do to remedy the defects in the earlier process “which means that, inevitably, more litigation will follow”.

The applicants also said the SCA had failed to deal with their contention that Shell was required to obtain an environmental authorisation under the National Environmental Management Act before it could conduct its exploration activities.

In an affidavit, Delme Cupido, Southern Africa Hub Director of Natural Justice and also on behalf of Greenpeace Africa, said that at the SCA hearing, senior counsel representing the minister had “candidly conceded” that he could not defend the legality of the decision because none of the decision-makers had deposed to an affidavit.

And yet, the SCA had not simply “dismissed the appeal” but instead had granted “extraordinary relief”, which the parties had not asked for and which had not been canvassed.

“The suspension order came as a complete surprise to Greenpeace Africa and Natural Justice,” Cupido said.

He said the order was not a constitutionally compliant “effective remedy”, because it was “wholly unclear what must be done and by whom to give effect to further public participation”.

Further, Cupido said, the statutory regime precluded public participation in the renewal process.

One of the issues raised by the SCA was expenditure by Impact (Shell), “but the mere fact that a company spends money in pursuit of a right that it was granted unlawfully as a result of its own constitutionally inadequate consultation process does not constitute a reason to entirely undermine the effectiveness of the constitutional remedy obtained by the applicants”.

Cupido said there was a broader public interest in obtaining clarity on such orders.

In her affidavit, Legal Resources Centre attorney Wilhelmina Wicomb, who represents the applicant communities, said the SCA had acknowledged the breach of her clients’ rights, but it had then effectively overlooked these breaches.

On the broader public interest in the proposed appeal to the Constitutional Court, she said, “The obligation to consult meaningfully is one that is far reaching and finds application in all instances in which public power is exercised.”

Shell and the minister are still expected to file papers and the Constitutional Court will then determine whether it will hear the appeal.

Shell spokesperson Pam Ntaka said, “We are currently reviewing the leave for appeal submissions”.

“We welcome the Supreme Court of Appeal’s direction that the exploration right remains valid, subject to further public consultation and the renewal application. South Africa is currently reliant on energy imports for many of its energy needs. Should viable resources be found offshore, this could significantly contribute to South Africa’s energy security and the government’s economic development programmes.”

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