Shell Judgment expected – Part B of the legal challenge against seismic survey off South Africa’s Wild Coast

By Katherine Robinson

Makhanda, 29 August: This Thursday, 1 September 2022, judgment will be handed down in the Makhanda High Court on Part B of the legal challenge to stop Shell’s planned seismic blasting off the Wild Coast of South Africa. Proceedings will start on Thursday morning following a two-day hearing, held on 30 and 31 May 2022.

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 seek to review and set aside the 2014 decision by the Department of Mineral Resources and Energy to grant an exploration right to Shell and Impact Africa to conduct seismic surveys off the ecologically sensitive Wild Coast of South Africa. 

Arguments

Shell argued that it should not be obliged to conduct an environmental impact assessment (EIA) as an EIA was not a legal requirement when it applied for this permit in 2013. The applicants argue that the survey will cause serious and irreversible harm to the marine environment and call 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. 

  • That the exploration right was granted unlawfully because there was no consultation with affected communities and that the companies’ consultations with traditional leaders was insufficient. 
  • That 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 (NEMA).
  • In awarding the exploration right, the decision-makers failed to consider the contribution of oil and gas exploitation to climate change. 
  • 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 and also ocean life. 

Impact of a favourable judgment

The relief sought, as amended, includes the review and setting aside of 1) the DMRE’s decision to grant the Exploration Right to Impact Africa in April 2014, 2) the DMRE’s decisions to renew the exploration right in December 2017 and August 2021, and 3) 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.  

Furthermore, this case also seeks a declaration that an EMPr under the MPRDA is not equivalent to an environmental authorisation under NEMA. Thus, a holder of an exploration right under the MPRDA 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.

ENDS

Notes for editors

  1. All efforts are being made to arrange for a livestream from court so that the media and other stakeholders in this matter can follow the proceedings remotely. Should our request to  livestream be granted, the link together with the time of judgment, will be emailed by Natural Justice to all media as soon as it becomes available. 
  2. Court papers can be found here: https://naturaljustice.org/saving-the-wild-coast/ together with the latest litigation fact sheet
  3. Natural Justice will be sharing a post-judgment press release on 1 September.
  4. Applicants and attorneys will be present outside at the Makhanda High Court for post-judgment interviews.
  5. Look out for registration details for a post-judgment webinar with attorneys and applicants, likely to be held on Friday 2 September.
  6. To fund a united legal front and strengthen the global movement to transition away from fossil fuels and advance a sustainable future please donate here. 
  7. Previous press releases for background and reference: 
  8. Counsel: 
    • Counsel for Applicants 1-7: Tembeka Ngcukaitobi SC; Emma Webber; Nikki Stein. Instructing Attorneys: Legal Resources Centre and Richard Spoor Inc. 
    • Counsel for Applicants 8-9: Nick Ferreira and Cingashe Tabata. Instructing Attorneys: Cullinan & Associates Inc. 
    • Counsel for the Minister of the Department of Mineral Resources and Energy: Albert Beyleveld SC and Avian Barnett. Instructing Attorneys: State Attorney. 
    • Counsel for the Minister of the Department of Forestry, Fisheries and the Environment: Jennifer Williams. Instructing Attorneys: State Attorney. 
    • Counsel for Shell: Adrian Friedman and Sarah Pudifin-Jones. Instructing Attorneys: Shepstone & Wylie Inc. 
    • Counsel for Impact Africa: Jeremy Gauntlett SC QC; Frank Pelser; Adiel Nacerodien; Nikiwe Nyathi. Instructing Attorneys: Cliffe Dekker Hofmeyr Inc. 
  9. Applicants and respondents:
    • SUSTAINING THE WILD COAST NPC First applicant
    • MASHONA WETU DLAMINI Second applicant
    • DWESA-CWEBE COMMUNAL PROPERTY ASSOCIATION Third applicant
    • NTSINDISO NONGCAVU Fourth applicant
    • SAZISE MAXWELL PEKAYO Fifth applicant
    • CAMERON THORPE Sixth applicant
    • ALL RISE ATTORNEYS FOR CLIMATE AND THE ENVIRONMENT NPC Seventh applicant
    • NATURAL JUSTICE Eighth applicant
    • GREENPEACE ENVIRONMENTAL ORGANISATION Ninth applicant
    • MINISTER OF MINERAL RESOURCES AND ENERGY First respondent
    • MINISTER OF ENVIRONMENT, FORESTRY AND FISHERIES Second respondent
    • SHELL EXPLORATION AND PRODUCTION SOUTH AFRICA BV Third respondent
    • IMPACT AFRICA LIMITED Fourth respondent
    • BG INTERNATIONAL LIMITED Fifth respondent
  10. For media inquiries contact:

29 August 2022

Theme

Climate Change

Country

South Africa

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