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.
