Proceedings in the case between Shell, Impact Africa and environmental activists will start on Thursday morning following a hearing on 30 and 31 May 2022.

On 31 May, Judge President Selby Mbenenge, Deputy Judge President Zamani Nhlangulela and Judge Thandi Norman adjourned the matter, reserving judgment on granting the joinder application put forward by Natural Justice and Greenpeace Africa (represented by the environmental law firm Cullinan & Associates), as well as the declarator that Shell required an environmental authorisation under the National Environmental Management Act (Nema), and whether its exploration rights had been lawfully awarded by the Department of Mineral Resources and Energy (DMRE).

The case was brought by Sustaining the Wild Coast NPC, Wild Coast communities, Wild Coast small-scale fishers and All Rise Attorneys for Climate and the Environment, represented by the Legal Resources Centre and Richard Spoor Attorneys. Natural Justice and Greenpeace Africa applied to join the case, represented by environmental law firm Cullinan and Associates.   

The applicants are seeking to review and set aside the 2014 decision by DMRE to grant an exploration right to Shell and Impact Africa to conduct seismic surveys off the ecologically sensitive Wild Coast. 

According to Katherine Robinson of Natural Justice, the relief sought, as amended, includes the review and setting aside of:

• The DMRE’s decision to grant the exploration right to Impact Africa in April 2014;
• The DMRE’s decisions to renew the exploration right in December 2017 and August 2021, and;
• A final interdict prohibiting Shell from undertaking seismic survey operations under the exploration right.

“If successful, several flawed decisions on the part of the DMRE will be set aside, while Shell and Impact Africa will be prohibited from undertaking seismic surveys under the exploration right in question. In effect, Shell and Impact Africa would need to reapply for an exploration right to explore for oil and gas along the Wild Coast,” she said.

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Robinson said this case also seeks a declaration that an environmental management programme under the Mineral and Petroleum Resources Development Act is not equivalent to an environmental authorisation under Nema. 

“Thus, a holder of an exploration right under the [act] may not undertake any seismic survey if it has not been granted an environment authorisation. This will ensure that any future seismic testing abides by the dictates of the law, including the adequate public participation processes, need and desirability assessments and environmental impact assessments that obtaining an environmental authorisation under Nema requires,” she said.

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During the two-day court proceedings in May Shell argued that it should not be obliged to conduct an environmental impact assessment because it had not been a legal requirement when it applied for the permit in 2013.

‘Irreversible harm’

The applicants argued that the survey would cause serious, irreversible harm to the marine environment and called for a strict application of the precautionary principle: 

“Shell should be required to conduct an environmental impact assessment, based on the best available science, which has advanced considerably since Shell’s permit was granted in 2014. Further grounds include: lawfulness of conducting a seismic survey without an environmental authorisation; inadequate public participation; failure to consider climate change and the interests of the whole community; and procedural unfairness.”

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They argued that the exploration right had been granted unlawfully because there had been no consultation with affected communities and that the companies’ consultations with traditional leaders had been insufficient. 

“Even if Shell’s exploration right is lawful, Shell should not be permitted to conduct seismic blasting without an environmental authorisation under the National Environmental Management Act. In awarding the exploration right, the decision-makers failed to consider the contribution of oil and gas exploitation to climate change,” the applicants said.

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They also argued that in awarding the exploration right, the decision-makers failed to consider the Integrated Coastal Management Act and its requirement to consider the interests of the entire community, including fishers, as well as ocean life.

Representing the DMRE, advocate Albert Beyleveld SC argued that the notification published in a newspaper was adequate, according to the Mineral and Petroleum Resources Development Act regulations.

He said applicants should have instead directly challenged the regulations themselves as inadequate: “The applicants were required to first resort to internal remedies under the [act] before bringing a court application.”  DM/OBP