The Eastern Cape High Court in Gqeberha reserved judgment in an application for leave to appeal by the minister of mineral resources and energy, Gwede Mantashe, Impact Africa and Shell against a judgment by the Makhanda High Court which found that the exploration right granted by the minister to allow Shell to conduct seismic surveys off the ecologically sensitive Wild Coast was unlawful.

Wild Coast communities, Sustaining the Wild Coast, All Rise, Natural Justice and Greenpeace Africa, also sought leave to cross-appeal against the court’s decision not to consider whether Shell and Impact Africa required an environmental authorisation before commencing the seismic surveys.

The Makhanda High Court, on 1 September, found that the process through which the decision to grant an exploration right was made, was procedurally unfair on several grounds, including failure to consider the communities’ spiritual and cultural rights, their right to food and the potential climate change implications.

Environmental authorisation

The authorisation for the exploration right was granted by the minister on the basis of an Environmental Management Programme developed by Impact Africa in 2013. Impact Africa did not undertake an environmental impact assessment or obtain an environmental authorisation before it commenced the survey.

The decision to provide authorisation was set aside as there was no consultation with the affected communities who live on the coastline and who depend on the ocean to sustain their livelihoods. Further, the court held that consultation with traditional leaders, and not with wider communities, was insufficient to be considered meaningful engagement.

Additional grounds for the court’s decision included the minister’s failure to take into account climate change and the desirability of oil and gas development in South Africa, given the current climate emergency.

Shell, Impact Africa and Mantashe are seeking to appeal the judgment on the following grounds:

• The failure of the communities and their partners to exhaust their internal remedies, which would have required lodging an appeal with the minister before approaching a court.
• The applicants were unduly delayed in bringing the application for review and were therefore out of time in terms of the Promotion of Administrative Justice Act.
• The consultation process complied with the requirements of the Mineral and Petroleum Resources Development Act.
• The court erred in its findings in taking into account considerations such as the precautionary principle.
• The harm to the applicants’ spiritual and cultural rights is of no bearing in a review.

In response, the communities and their partners believe that the Makhanda High Court was correct in ruling that the applicants did not need to exhaust their internal remedies, given the public statements made by the minister referring to them as “apartheid and colonialism of a special type”, arising from their opposition to oil and gas exploration.

The applicants also submitted that there was no undue delay, as they were only made aware of the seismic survey in November 2021.

“The communities live in areas where newspapers advertising the survey did not circulate and they were not involved in the defective consultation process whereby traditional leaders were consulted.”

According to Natural Justice’s Katherine Robinson, “The court considered the expert evidence submitted by the applicants that not enough is known about the cumulative impacts of seismic surveys, and consequently found that the minister should have applied the precautionary principle. The communities and their partners agree that the precautionary principle should have been considered when granting the authorisation.

“The appellants contend that the court was wrong to consider the impact to the applicant communities’ spiritual and cultural rights and livelihoods in the granting of the exploration right. According to the appellants, this was a misdirection of the law and unduly dismissive of the constitutionally protected rights of the applicants.

“The court was correct in ruling that the minister, when deciding to award the exploration right to Shell, would have benefited from a more holistic approach, including taking into account the cultural rights and spiritual beliefs of the applicants.”

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Advocate Chris Loxton SC, representing Impact Africa, stated that Impact Africa could have done better by publishing notices in isiXhosa and not just in English and Afrikaans, but that it had complied with the regulations.

He also argued that actions taken in 2013 should not be judged against today’s standards, as the standards had changed.

Mantashe, Shell and Impact Africa all argued that the Supreme Court of Appeal might differ from the high court.

Advocate Nikki Stein, the Wild Coast communities’ representative, argued that the community applicants have recognised customary fishing rights and are dependent on their surrounding environment to sustain themselves and make a living.

“Additionally, the community applicants have spiritual beliefs and cultural connections to the ocean — this of course gives them a specific interest in Shell’s survey, but despite this, they were not given adequate notice of the survey,” she said. DM/OBP