In a historic victory for the people of the Wild Coast, a South African court declared unlawful and set aside the right given to fossil fuel giant Shell for oil and gas exploration in the ecologically sensitive region. The ruling was issued by Judge President Selby Mbenenge of the High Court in Makhanda on September 1, following a hearing held in May.
The verdict is the culmination of a months-long legal battle, built on years of struggle by Indigenous and fishing communities and environmental activists to defend the Wild Coast against resource extraction and exploitation.
“The fight of coastal communities versus Shell is a struggle for environmental justice, for the protection of rural livelihoods, for sustainable development, and for the life of the planet,” said Sinegugu Zukulu from Sustaining the Wild Coast in a press release.
A reason to celebrate: The authorisation of the Oil and Gas exploration off the Wild Coast in South Africa has been set aside by the courts in #Makhanda ✊✊✊✊
This decision affirms the value of nature, and protects our communities and their resources for future generations. pic.twitter.com/0Wsh6s49wD
— Natural Justice (@naturaljustice) September 1, 2022
In October 2021, Shell declared that it would commence seismic surveys off the Wild Coast starting December 1. The process would involve blasting air guns through over 6,000 square kilometers every 10 seconds, for five months.
On December 2, the Legal Resources Center (LRC) and law firm Richard Spoor Attorneys filed an urgent interim application on behalf of the Amadiba, Cwebe, Hobeni, Port Saint Johns, and Kei Mouth communities (Sustaining the Wild Coast NPC and others). The case was divided into two parts: Part A of the application, which sought an interdict to stop the seismic surveys, was successfully granted by the Grahamstown High Court on December 28.
Part B, which was a broader court case, made the following arguments: a) that Shell did not have the necessary environmental authorization under the National Environmental Management Act (NEMA) to undertake seismic activities, b) that it failed to properly consult affected communities and stakeholders, and c) that seismic testing would violate constitutionally protected rights.
Part B was then expanded to include a judicial review of the decision to grant the exploration right to Shell and its renewal. Greenpeace Africa and Natural Justice, who had filed an ultimately unsuccessful interdict application in November, also filed an application to join the case.
The case called for a review and setting aside of the decision taken by the Department of Mineral Resources and Energy (DMRE) to grant the exploration right – that was given to Impact Africa in April 2014 and subsequently transferred to Shell. The right was renewed in 2017, and again in 2021.
To this end, the case argued that the right should not have been granted because: a) it was granted unlawfully since there was no consultation with the affected communities, and that Shell’s consultations with traditional leaders were not sufficient, b) that the decision-makers had failed to consider the potential harm to the livelihoods and cultural and spiritual rights of fisherfolk, as well as the climate impacts of oil and gas exploration, and c) that decision-makers had failed to consider the Integrated Coastal Management Act which mandates that the interests of the entire community must be considered.
The court ruled in favor of the applicants on all the grounds of the review on Thursday.
During the hearings in May, the applicants had highlighted glaring issues in the consultative process, which itself had been outsourced by Shell. The identification of interested parties was not a public process and not all affected communities were included in the stakeholder database.
Proposed exploration activities were first publicized through newspaper adverts on March 22, 2013. The court noted that newspapers were out of reach for the Dwesa-Cwebe, Xolobeni, and Pondoland area communities. When people were finally able to gain access to newspapers, they were in English and Afrikaans, which was barely understood by the Xhosa-speaking affected communities.
In its judgment on Thursday, the court stated that if the “consultants and those who mandated them were serious about reaching out to the applicant communities, they would have seen their way clear to utilizing a newspaper that is in a language spoken by the majority of the people in the area concerned.”
Moreover, information about the project was made available online for affected persons to access. The ruling took “judicial notice” of the fact that a great part of the population, especially in rural communities, lacked access to computers and similar devices.
The court added that the “top down approach whereby kings or monarchs were consulted…finds no space in a constitutional democracy,” and “…meaningful consultations consist not in the ticking of a checklist, but in a genuine, bona fide substantive two-way process aimed at achieving, as far as possible, consensus…”
Much of the defense of the seismic surveys, both by Shell and the then Mineral Resources Minister Gwede Mantashe, had been couched in the rhetoric of economic development and job creation.
In its ruling, the court noted that “Much as there were statements made in the EMPr [Environmental Management Programme] that the seismic survey would create jobs and increase revenues, etc, no detail to substantiate these claims is made,” and that there was “…no explanation as to how the jobs will be created, and how the economy will be stimulated, or how the seismic survey will improve the socio-economic circumstances…”
The respondents (Minister of Mineral Resource and Energy and others) had also claimed that climate change considerations and the right to access food and livelihood were irrelevant when an exploration right was being considered.
The court stated that “…had the decision-maker had the benefit of considering a comprehensive assessment of the need and desirability of exploring new oil and gas reserves for climate change and the right to food perspective, the decision-maker may very well have concluded that the proposed exploration is neither needed nor desirable.”
The judgment added, “The applicant communities contend that they bear duties and obligations relating to the sea and other common resources like our lands and forests.”
It noted that there was no evidence that the possibility of harm was considered, and that none of the measures proposed by the respondents had addressed the potential harm to the applicants and their religious or ancestral beliefs and practices.
“They just always assume that the ocean is not attached to the people…The ocean, we are attached to because our ancestors are there, how can you just destroy our ancestors…?” said Nonhle Mbuthuma from the Amadiba Crisis Committee after the ruling.
In its concluding remarks, the court stated that it was “demonstrably clear that the decisions were not preceded by a fair procedure; the decision-maker failed to take relevant considerations into account and to comply with the relevant legal prescripts.”
The court subsequently set aside the exploration right granted in 2014 and its two renewals over the following years.
The applicants had additionally sought a declarator that an EMPr (granted under the Mineral and Petroleum Services Development Act) was not equivalent to an environmental authorization under NEMA, which also accounted for a project’s potential impacts on social and economic conditions and cultural heritage.
Shell had maintained that it did not require such an authorization since it had the EMPr. The court stated on Thursday that the setting aside of the exploration right and its renewals had rendered the determination of declaratory relief unnecessary.
Celebrations after the judgment against @Shell was explained eXolobeni ❤️ pic.twitter.com/WqIVOPGVoF
— Johan Lorenzen (@JohanLorenzen) September 1, 2022
“This victory is not just a victory for Wild Coast communities and making our voices heard. This is a victory against capitalist extraction and destruction of our future…This is about protecting the planet and the whole of humanity,” Mbuthuma stressed.