On Monday, May 30, communities from South Africa’s Wild Coast gathered in front of a court in the city of Gqeberha. The day marked the beginning of a landmark 3-day legal challenge brought by these communities against gas and oil multinational Shell, Impact Africa, and the Department of Mineral Resources and Energy (DMRE). The case is the culmination of a long struggle to protect the Wild Coast against oil and gas exploration. In 2014, the DMRE granted Impact Africa an exploration right off the East Coast. Impact Africa then sought to develop an Environment Management Programme (EMPr) required under the Mineral and Petroleum Services Development Act (MPRDA).
This was done just months before South Africa implemented the One Environment System, which streamlined mining regulations and environmental authorizations under the National Environmental Management Act (NEMA). According to legal non-profit Natural Justice, Impact Africa did not conduct an environmental impact assessment, and did not obtain an environmental authorization under NEMA. This authorization works to identify the potential impacts of a project on the environment, social and economic conditions, and cultural heritage as well as allowing for an assessment of mitigation measures.
Over the next few years, the exploration license was renewed twice. In August 2021, Shell acquired the exploration right from Impact Africa in a farm-out agreement. In October, Shell announced that it would commence seismic surveys off the Wild Coast, starting December 1. The process would involve a vessel firing air guns every 10 seconds through 6,011 square kilometers of ocean surface, for five months. These shock wave emissions would penetrate three kilometers of water, into 40 kilometers of the Earth’s crust below the seabed.
The announcement sparked widespread outrage across South Africa, with protests held in nearly 100 towns. The government’s decision to grant the exploration right was heavily condemned by Indigenous peoples in the Wild Coast, who hold spiritual and cultural ties to the ocean. These communities also hold customary, small-scale fishing rights in the area. Not only would seismic testing cause immediate damage and destruction in the Wild Coast, it would potentially pave the way for major environmental disasters in the future if oil extraction were to indeed take place, these groups claimed.
The legal battle against Shell: November, 2021- present
On November 29 2021, Greenpeace Africa, Natural Justice, Kei Mouth Ski Boat Club, and the Border Deep Sea Angling Association approached the court to seek an urgent interim-interim interdict against Shell’s plans to conduct seismic testing in the Wild Coast. Filed at the Eastern Cape Division of the Grahamstown High Court, the application was based on the grounds that seismic exploration activities were prima facie unlawful until Shell applied for, and received, the necessary authorization under NEMA. The applicants also argued that there was no meaningful consultation with the affected communities in the Wild Coast, and that they had not been informed about the exploration rights.
The organizations said Shell’s activities would cause irreparable harm to the sensitive marine life in the area. They would have a direct impact on the rights of the communities of Xolobeni, Nqamakwe, and Port Saint Johns. The applicants sought the urgent interim-interim interdict to stop the seismic surveys pending a full hearing on the case. They noted that they would require time to collect and present expert evidence on the matter. The application was rejected by the court on December 3, 2021, with the judge also ordering the applicants to pay Shell’s legal fees. The applicants appealed the cost order and a judgment is still pending.
Meanwhile on December 2, the Legal Resources Center and Richard Spoor Attorneys approached a court seeking a second urgent interim interdict. The application was filed at the Grahamstown High Court on behalf of the Amadiba, Cwebe, Hobeni, Port Saint Johns, and Kei Mouth communities (Sustaining the Wild Coast and others). The case was split into Parts A and B. Part A sought an interdict to halt the Shell’s seismic testing and Part B was a broader case which argued that Shell did not have the necessary authorization in terms of the NEMA to undertake seismic testing, the company had failed to properly consult the affected communities, and that the seismic testing would violate the communities’ constitutional rights.
Part A was successful, with Judge Gerald Bloem issuing an interdict on December 28th, pending a finalization of Part B. Shell was ordered to immediately cease seismic blasting in the Wild Coast. Ahead of the hearings on Part B, Greenpeace Africa and Natural Justice filed an application in February requesting their application be combined with that of Sustaining the Wild Coast and Others. The full hearings on Part B were initiated in the Port Elizabeth High Court in Gqeberha on May 30th, 2022.
As the case against Shell continues in the high court in Gqeberha today, a reminder of the parties involved and the issues in contestation. https://t.co/FfncPXjdLC pic.twitter.com/DaFl4M4Iua
— Legal Resources Centre (@LRCSouthAfrica) May 30, 2022
Sustaining the Wild Coast and Others v Minister of Mineral Resources, Shell and Others
The applicants’ arguments were presented before a three-member bench of Judge President Selby Mbenenge, Deputy Judge President Zamani Nhlangulela, and Judge Thandi Norman on Monday. The joinder application is being represented by the Cullinan & Associates environmental law firm. The court will determine whether Shell required an environmental authorization under NEMA and whether the exploration right was granted lawfully. Advocate Tembeka Ngcukaitobi SC argued that the affected communities had not been consulted. He added that the process itself had been outsourced to consultants, and that the identification of interested parties was not a public process.
None of the notices for consultation were in the isiXhosa language, and in cases that they had been, the newspapers carrying these notices were not in circulation among the affected Wild Coast communities. They were also in English and Afrikaans. Speaking during a post-hearing discussion on June 1st, Nonhle Mbuthuma from the Amadiba Crisis Committee highlighted that Shell only consulted the monarchies within the communities. South Africa has also introduced the Traditional and Khoi San Leadership Bill which allows monarchies to make deals with private companies. Shell’s own papers also show that the traditional leaders it did consult with had stated clearly that a meaningful consultation with the communities was required. Mbuthuma added that the use of newspapers was an insult in a rural context where Indigenous people did not have access to newspapers, and instead relied on forms of communication such as word of mouth, for information.
Some of the applicants from the Wild Coast communities have made the long journey to Gqeberha for the hearing today. #SaveTheWildCoast pic.twitter.com/9B2AsMN3NM
— Priyanka 💁🏽♀️ (@Priyanka101) May 30, 2022
Adv. Ngcukaitobi SC then argued that Shell should not be allowed to conduct seismic blasting without environmental authorization under NEMA. The company has accepted that it does not have this authorization, arguing that it does not need it. Representing Greenpeace Africa and Natural Justice, Advocate Nick Ferreira added that decision-makers had not considered the climate impacts and key legislation in issuing the exploration right and its renewals. He further stressed that [Mineral Resources] Minister [Gwede] Mantashe had conceded that he had not taken the provisions of the National Environmental Management: Integrated Coastal Management Act into account. The NEM:ICMA mandates all government officials to take into consideration the interests of the entire community, future generations, and the environment while deliberating decisions related to coastal public property and activities.
“Not only were many impacted community members unaware of the seismic testing due to the inadequate public participation process, but registered interested and affected parties were not even informed of the granting or subsequent renewals of the exploration right,” Ferreira said.
The Respondents’ claims
Proceedings resumed on May 31st, with arguments from Counsel representing Impact Africa, Shell, and the Minister of the DMRE. Jeremy Gauntlett SC, representing Impact Africa, argued that Greenpeace Africa and Natural Justice added nothing new to the case. He added that the applicants were using a legal “knobkierie” to undermine the Minister’s decision-making authority. He further stated that the precautionary principle was not relevant to the case, and the relevant question was whether the harm was serious and irreversible.
Meanwhile, representing the DMRE, advocate Albert Beyleveld SC argued that the notification published in the newspaper was adequate according to the MPRDA. He added that the applicants should have directly challenged the regulations as inadequate. Finally, he argued that applicants were required to first resort to internal remedies under the MPRDA before approaching the court. Shell’s representative, Advocate Adrian Friedman stated that an environmental management programme (EMPr) under the old MPRDA was the equivalent of an Environmental Authorization (EA) under the One Environment System. As such, he reiterated Shell’s claim that it did not require an EA for its seismic testing.
These arguments were refuted by Ngcukaitobi. First, he highlighted the differences between an EMPr and an EA under NEMA, stating that a plain reading of the laws and regulations undercut the respondents’ “circular and untenable” arguments. On the question of internal remedies, he pointed to Minister Mantashe’s biased public commentary against the applicants, and the fact that an entity associated with Shell had donated money to the African National Congress in 2021. Advocate Ferreira also argued that Greenpeace Africa and Natural Justice had requested copies of the decisions from the DMRE, but did not receive a response until March 2022.
Ngcukaitobi also rejected Shell’s claims that a “tick-box” exercise of the MPRDA’s bare minimum requirements constituted adequate consultation. He stressed the necessity of applying a precautionary principle to the case, arguing that experts had told the court that harm from the offshore exploration was inevitable. Meanwhile, Ferreria also told the court that an environmental authorization (EA) was a legal requirement, independent of an exploration right. Shell needs an EA prior to conducting a seismic survey, which is a listed activity under NEMA. Importantly, while Minister Mantashe could deem an EMPr as an EA, he did not exercise this power in this case.
The Court has reserved judgment and adjourned the matter.
“Are the Wild Coast communities anti-development?”
Speaking at the post-case reflection discussion, Wilmein Wicomb also addressed the narrative that the Wild Coast communities were “anti” or opposed to development. She argued, “if we accept that these communities are anti-development, that is not relevant. The law does not require Minister Mantashe or Shell that companies consult only those people who agree with their development. That would make a farce of consultation. The fact that they are completely opposed to these surveys is irrelevant, they must still be spoken to and their concerns taken on board.”
Wicomb added that a question which then emerged was, had the communities in fact stated that they did not want the seismic surveys under any circumstances, would this then bind Minister Mantashe. However, the applicants did not make this case here. Instead they stated that they had to be consulted, and their opposition had to be understood. Wicomb added that these communities are not anti-development. Rather, “they are against this kind of development, which is decided in Pretoria and benefits a few, largely the companies. These communities are pro sustainable development, bottom-up development, and participatory development.”
Nonhle Muthumaba stated importantly, “We are for development. But the question they failed to ask [the communities] is ‘if you do not want this, then what do you want?’ They do not want to ask this question, because they believe in an imposed, top-down approach.”
Summary of arguments accessed from Natural Justice