By Kirsten Youens

In a well-received judgement handed down on 28 December 2021 by Judge Bloem, Shell was ordered to immediately cease its seismic survey along the Wild Coast of South Africa. The urgent interdict was granted pending the hearing of an application for Shell to be interdicted from conducting its surveys until it has obtained an environmental authorisation in terms of the National Environmental Management Act (NEMA).  The Court ordered Shell and the Minister of Mineral Resources and Energy to pay the costs of the application for the interim interdict.

All Rise Attorneys for Climate and Environmental Justice along with Sustaining the Wild Coast (SWC), the Dwesa-Cwebe Communal Property, Ntsindiso Nongcavu, Sazise Maxwell Pekayo, Mashona Wetu Dlamini and  Cameron Thorpe lodged the urgent application against Shell’s seismic survey off the Wild Coast in December 2021. We were represented by Legal Resources Centre and Richard Spoor Inc.

The two main issues were that firstly, Shell had not secured environmental authorisation under NEMA but relied on an Environmental Management Programme that was submitted and approved as part of an application for an exploration right to use seismic surveys to seek out oil and gas reserves in terms of section 79 of the Mineral Petroleum Resources Development Act (MPRDA) and secondly, Shell had failed to consult with communities and individuals in the process of applying for its exploration right. 

At the hearing, Advocate Tembeka Ngcukaitobi, senior counsel for the applicants, argued that the court cannot endorse a farcical consultation process. He described the matter as being about the significance of consultation; that consultation would have unlocked insight into community lives. He said “If you don’t consult with people, it is as if you don’t see them. You treat them as if they don’t exist.”

In his judgement, Bloem J confirmed that Shell had a duty to meaningfully consult with the communities and individuals. Shell had failed to consult with the applicant communities who hold customary rights, including fishing rights. He acknowledged that the applicant communities also hold a special spiritual and cultural connection to the ocean and it was therefore crucial for Shell to consult them to understand how the survey would impact them. 

Bloem J held that “Shell should not be allowed to use the consequences of its own failure to adequately consult with all the interested and affected persons as a ground for why an interim interdict should not be granted against it. Constitutional rights are at stake. The financial loss that Shell and Impact Africa are likely to suffer cannot be weighed against the infringement of the Constitutional rights in question. The breach of those constitutional rights threaten the livelihoods and well-being of the applicant communities as well as their cultural practices and  spiritual beliefs. Where constitutional rights are in issue, the balance of convenience favours the protection of those rights.” 

The Court found that the exploration right, which was awarded on the basis of a substantially flawed consultation process, was unlawful and invalid. The applicants’ right to meaningful consultation constituted a prima facie right which deserved to be protected by way of an interim interdict.

Judge Bloem did not make an order regarding the lack of environmental authorisation but he did find that: “Whether or not Shell requires an environmental authorisation obtained under NEMA is a difficult legal issue. The Minister caused an affidavit to be delivered wherein he adopted the stance that “the environmental management programme used to support the application made by [Impact Africa] for the renewal of its exploration right …… constitutes an environmental authorisation, as envisaged by the National Environmental Management Act 107 of 1998 (NEMA)”. Whether this is so, however, is a decision to be made by the court. Although I am of the view that the applicants have prospects of success in that regard, it is a matter that should rather be considered by the court”.

Bloem J devoted much of his judgment to setting out the harm that the seismic survey will have on marine life and concluded by stating that the applicants had established a reasonable apprehension of irreparable harm.

ALL RISE is extremely gratified that the Court acknowledged the need to involve communities in decisions affecting them; to understand and accept cultural and spiritual practices; and to acknowledge the importance of protecting our marine environment. It is a progressive judgement that will be referred to and cited for many years to come. 

Unfortunate Environmental Authorisation Precedent Stands as Application to the Constitutional Court Dismissed

Unfortunate Environmental Authorisation Precedent Stands in the matter between the Global Environmental Trust & MCJEJO v Tendele Coal Mining (Pty) Ltd and Others as Application to the Constitutional Court Dismissed

By Kirsten Youens

On 11 January 2022 the long awaited decision by the Constitutional Court regarding our application for leave to appeal filed in April 2021 was received. Disappointingly, it was dismissed which means that this important legal issue will not be argued in South Africa’s highest court.

The background to this matter between our clients (the Global Environmental Trust and the Mfolozi Community Environmental Justice Organisation) and Tendele Coal Mining (Pty) Ltd revolved around the interpretation of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) and the National Environmental Management Act 107 of 1998 (NEMA) before the “One Environmental System” came into force on 8 December 2014. In short, the issue was whether the environmental impact of mining operations was exclusively dealt with under the MPRDA through approval of the Environmental Management Programme (EMP), or whether an environmental authorisation issued under NEMA was also required before mining operations could commence.

Tendele has neither applied for nor been granted environmental authorisation under NEMA for its open cast coal mine in northern KwaZulu-Natal, but held the view that its EMPs prepared and approved in terms of the MPRDA were sufficient. Our clients demanded Tendele seek an environmental authorisation under the NEMA. Tendele’s argument was that no environmental authorisation was required for mining rights sought before December 2014. 

We applied for an interim interdict to stop Tendele from mining until it obtained environmental authorisation. The Pietermaritzburg High Court sided with Tendele. After criticising the applicants’ pleadings, the court found that mining rights sought before December 2014 do not require environmental authorisation. According to the High Court, the MPRDA covered all environmental impacts of mining and NEMA had no role even with regard to the ancillary activities related to mining that were listed in the NEMA Environmental Impact Assessment regulations. The High Court also ordered costs against the applicants with no reference to the principles of Biowatch (ie. persons should not be deterred from enforcing their rights in fear that they will have to pay their opponent’s costs if they do not succeed). This principle arose from the Constitutional Court case of Biowatch Trust v Registrar Genetic Resources and Others. 

Given that a judgment stands until either rescinded or set aside by a court of appeal, our clients appealed this judgment to the Supreme Court of Appeals (SCA). 

The majority judgment handed down by the Supreme Court of Appeal dismissed the appeal on the basis of its pleadings. It criticised the applicants for not enumerating which specific listed activities Tendele undertook that obliged it to seek an environmental authorisation under NEMA. The majority judgment however did not address the legal issue of the requirement for environmental authorisation under NEMA nor the issue of the costs order.  

However, one of the judges, Schippers JA, was not persuaded by Tendele’s “quibbles” about our pleadings in his dissenting judgment. He called them ‘opportunistic and contrived’. Schippers JA accepted our argument that there was no genuine dispute over whether Tendele is conducting listed activities. Tendele is mining ‘one of the largest resources of open-pit mineable anthracite reserves in South Africa’ and it therefore must be conducting listed activities. Also, Tendele never denied that its ‘mining operations triggered any listed activity.’ 

Schippers JA’ dissenting judgment would have interdicted Tendele from mining without an environmental authorisation and ordered Tendele to pay costs. Boosted by this dissenting judgment, in April 2021 we sought the Constitutional Court’s leave to appeal  the majority judgment of the Supreme Court of Appeal. 

On 11 January 2022 we received notice that the Constitutional Court had dismissed our application. Therefore, the law right now is as pronounced by the High Court – that environmental authorisation is not required where a mining right was applied for before December 2014. The precedent of the High Court’s costs order against the community organisation and the chilling effect it has on constitutional litigation against mining companies, also still stands. 

The law around environmental authorisations for activities related to mining prior to December 2014, therefore remains murky. 

In the Mabola Case, the Court was faced with an application to review and set aside a decision to permit coal mining activities in a protected wetlands area.  Judge Davis held that the party seeking to conduct such mining activities would be required to obtain five different authorisations, including the approval of its EMP in terms of section 39 of the MPRDA and environmental authorisation for listed activities in terms of section 24 of NEMA. 

The Court in the Mineral Sands Resources case adopted the same view, albeit obiter, with Judge Rogers finding that prior to 8 December 2014 the decision to approve an applicant’s mining EMP and to grant the mining licence effectively constituted the environmental authorisation to conduct the mining activity but at the same time, the applicant would also have needed to obtain a NEMA environmental authorisation.

Recently, in case of Sustaining the Wild Coast NPC and Others against Shell’s seismic survey being undertaken on the Wild Coast, in which ALL RISE, NPC was an applicant, Judge Bloem held in his judgment:

Whether or not Shell requires an environmental authorisation obtained under NEMA is a difficult legal issue. The Minister caused an affidavit to be delivered wherein he adopted the stance that “the environmental management programme used to support the application made by [Impact Africa} for the renewal of its exploration right…constitutes an environmental authorisation, as envisaged by the National Environmental Management Act 107 of 1998 (NEMA)”. Whether this is so, however, is a decision to be made by the court. Although I am of the view that the applicants have prospects of success in that regard, it is a matter that should rather be considered by the court which will determine the relief south under Part B of the notice of motion. 

Thus, it is unfortunate that in our Global Environmental Trust matter the majority of the SCA did not deal with the environmental authorisation issues. However, as mentioned above, Schippers JA dealt squarely with the fact that a separate environmental authorisation under the NEMA was required:

It is clear, simply from the above provisions of NEMA, that an environmental authorisation granted by a competent authority under NEMA is not the same thing as an EM approved under the MPRDA. In Minister of Mineral Resources v Stern (to which we were not referred), this court assumed, without deciding, that an environmental authorisation under NEMA is essentially the same as an EMP. In my view, it is not. An environmental authorisation is required for the commencement of an activity identified in a listing notice. The impacts of listed activities on the environment are assessed in order ‘to give effect to the general objectives of integrated environmental management’ in Chapter 5 of NEMA, which lays down rigorous processes for that assessment.

We agree that it is clear. Section 5A of the MPRDA provides that no person may prospect for or remove, mine, conduct technical co-operation operations, reconnaissance operations, explore for and produce any mineral or petroleum or commence with any work incidental thereto on any area without an environmental authorisation. Section 24F of NEMA prohibits the commencement of any listed activity without an environmental authorisation. What were two parallel processes prior to 2014 – one being the environmental authorisation process under NEMA and the other being the EMPr under the MPRDA – became ONE process with the introduction of what is aptly referred to as the One Environmental Management System on 8 December 2014. Conducting mining activities authorised prior to 8 December 2014 in the absence of an environmental authorisation issued in terms of section 24 of NEMA are unlawful. Unfortunately, the Constitutional Court will not be deciding the issue and legal certainty is still needed.