A handful of people brandished placards in front of a Shell garage protesting against the company. Shell’s intentions have sparked an uproar among environmentalists and the public. File Picture: Leon Lestrade / Independent Newspapers
The Supreme Court of Appeal (SCA) yesterday dismissed an appeal by Shell, Impact Africa, and the Department of Mineral Resources and Energy, upholding the Makhanda High Court's judgment that set aside Shell's exploration right and subsequent renewals for oil and gas exploration off the Wild Coast of South Africa.
The High Court found that the exploration rights were granted unlawfully due to the failure to notify and consult affected communities. This oversight ignored the communities' rights to food and livelihoods from the ocean and their spiritual and cultural rights. Additionally, the court noted the Minister’s failure to comply with the Integrated Coastal Management Act.
The SCA agreed with these findings, but chose to suspend the setting aside of the exploration right until Shell’s final renewal application is finalised. This decision comes after Shell's third renewal application was quietly submitted on July 21, 2023 without notifying affected communities.
This decision is disappointing for the Wild Coast communities and the organisations that supported their case, such as Sustaining the Wild Coast NPC 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 also joined the case, represented by Cullinan & Associates.
Sinegugu Zukulu from Sustaining the Wild Coast, a recent Goldman Environmental Award winner, criticised the judgment, saying that the “judgment trumps the constitutional environmental rights of people to a safe and healthy environment. It disregards the rights of current and future generations to a climate crisis-free life. It pushes profiteering by the few over the majority”.
The communities argued for an outright cancellation of the exploration right due to numerous consultation and decision-making deficiencies. These included the lack of proper consultation with affected communities and inadequate consideration of the potential harm to fishers’ livelihoods, cultural and spiritual rights, and the impact of oil and gas exploitation on climate change.
Cormac Cullinan from Cullinan & Associates highlighted the broader implications of the ruling, saying: “Shell is refocusing its business on opening new oil and gas fields that will fuel catastrophic climate change and threaten the lives and human rights of millions of people, particularly in Africa.
“There is a tragic irony in the SCA using its constitutional powers to grant ‘a just and equitable remedy’ not to protect the human rights of current and future generations, but to preserve Shell’s application to renew its exploration right.”
The SCA addressed two preliminary issues before considering the merits of the case. First, it ruled that the communities were only aware of the intended exploration in October 2021, despite Shell arguing that the public had known since the right was granted in 2013.
The SCA found no evidence that the Minister had given public notice of the decisions before October 2021. Second, the SCA agreed with the High Court that an internal appeal to the Minister of Mineral Resources and Energy was impractical due to time constraints and a reasonable apprehension of bias against the communities.
“We are delighted that the SCA has upheld the High Court’s decision, reaffirming the importance of recognising and respecting the rights of local, directly affected communities. However, it is disappointing that the court thought it prudent to give Shell and Impact the chance to get a renewal of an invalid exploration right approved,” commented Wilmien Wicomb from the Legal Resources Centre, expressing mixed feelings about the ruling.
The SCA's decision to allow a further public participation process to cure identified defects in the renewal application process raises questions about how these defects in the original exploration right can be rectified.
Cynthia Moyo from Greenpeace Africa described the ruling as bittersweet. “This decision sends a dangerous message that corporate interests can still take precedence over the environmental and human rights of local populations. Greenpeace Africa stands with the Wild Coast communities in their continued fight for justice and sustainable development,” she said.
Melissa Groenink-Groves from Natural Justice criticised the SCA's decision saying: “it is a peculiar decision of the Supreme Court of Appeal. Firstly, it reaffirms that the decisions to grant the Exploration Right and the renewals were procedurally unfair and failed to take into account numerous important factors.
“These decisions were taken in the absence of input from people most affected by the decisions. Yet, it finds that these deficiencies can be cured through a new renewal decision, a decade later, by a Department whose Minister has already ‘nailed his colours to Shell’s mast’.
“This strikes at the heart of the Constitutional imperative that the original decision should have been lawful, reasonable and procedurally fair. Profits continue to trump people,” she said.
The communities and supporting organisations are now considering an appeal to the Constitutional Court, continuing their fight for environmental justice and the protection of their rights.
IOL
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