Wild Coast residents brought their urgent application over Shell’s seismic survey to court because there was a “reasonable apprehension of bias” in lodging an internal appeal with Mineral Resources and Energy Minister Gwede Mantashe.
This was argued on Tuesday by advocate Tembeka Ngcukaitobi SC on the final day of their legal challenge in the high court in Ggeberha. The applicants are seeking to review and set aside the decision by the mineral resources and energy department to grant Shell an exploration right for its seismic survey along the ecologically sensitive coast.
Mantashe had publicly characterised the applicants as “dishonest and duplicitous” and had “pinned his colours to the mast of Shell”, Ngcukaitobi said.
“The minister has told the world that those working to block seismic surveys are colonialists of a special kind … Individuals who are worried about protecting their sea are seen by their own minister, whom they’ve elected, as dishonest and duplicitous because … they pretend to care about the environment but in reality they’re trying to colonise the country,” he said.
“Once it’s clear that there is a reasonable apprehension of bias, which is where we are, no one can sensibly argue that there are available alternative measures,” he said, calling Mantashe “triple-biased”.
“First, by entering the fray he’s not party to in Part A, second, by making public completely ill-advised pronouncements, and biased, too, by being a senior member of the ANC that is receiving donations from parties associated with Shell.”
Part B
The applicants are asking the court to set aside the exploration right granted to Impact Africa in 2014, which was then acquired by Shell, and subsequently renewed in 2017 and last year.
In December, in Part A of the matter, Shell was temporarily interdicted from undertaking its seismic survey to search for oil and gas deposits along the Wild Coast until Part B of the original application has been finalised.
In Part B, the applicants argue that Shell does not have the necessary environmental authorisation in terms of the National Environmental Management Act (Nema) to lawfully undertake seismic exploration activities in the area; that it failed to consult affected people properly and that its seismic survey would violate rights protected under the Constitution. Part B was expanded to include a judicial review of the decisions to grant the exploration right and renewals.
The original applicants, Sustaining the Wild Coast and the affected coastal residents, represented by Richard Spoor Attorneys and the Legal Resources Centre, have been joined by Natural Justice and Greenpeace Africa, who are represented by environmental law firm, Cullinan & Associates.
‘Opportunistic arguments’
Earlier, advocate Adrian Friedman, counsel for Shell, argued that the applicants have made a “virtue of their own delay” and had come to court to make “opportunistic” arguments instead of turning to the department for redress, which included undertaking an internal appeal to Mantashe’s department instead of filing an urgent application with the court.
Friedman said the approved environmental management programme (EMPr) under the old Mineral and Petroleum Resources Development Act (MPRDA) regime is not only the equivalent of an approved EMPr under the One Environment System but that this EMPr is also the equivalent of an environmental authorisation under the One Environment System and, as such, Shell should not have been required to obtain an environmental authorisation to commence its seismic survey.
Ngcukaitobi highlighted the differences between an environmental authorisation under Nema and an environmental management programme under the old Act and argued that a plain reading of the laws and regulations undercuts the respondents’ “circular and untenable” argument that an EMPr under the MPRDA is the equivalent of an environmental authorisation under Nema”.
“It means you must scratch the statute yourselves,” he told the court. “You must change the words in the statute, replace the word ‘environmental management plan’ with the words ‘environmental authorisation’. That is the extraordinary nature of the submission that has been placed here.
“Our law is replete with many examples of the court going against literalism. There is not a single judgment we’ve been able to find, which authorises a judge to replace words in a statute and put different words in a statute.”
Advocate Nick Ferreira, on behalf of Natural Justice and Greenpeace, said an environmental authorisation is a legal requirement that is independent of an exploration right and that an environmental authorisation is required to undertake any listed activity under Nema. As such, he said, the validity of the exploration right is separate from the requirement for an environmental authorisation, and Shell needed an environmental authorisation before conducting a seismic survey, which is a listed activity under Nema.
No consultation
Friedman argued that the only “fair” approach to evaluating the consultation processes is to apply the regulations as written without a further “subjective” inquiry into the adequacy of the consultation process that took place.
Ngcukaitobi said none of the notices for consultation were in isiXhosa, and if they had been, they were in newspapers that are not in circulation along the Wild Coast.
“Did they make any attempts to use any alternative mediums to reach those individuals that will be affected? That cuts through this idea that there is somehow the community and then there is the public because the regulations say the persons situated on the land and likely to be affected by the decision. So who are those people situated on the land? Who are those people likely to be affected by the decision that have been marginalised by English and Afrikaans and by print?”
Mantashe’s senior counsel, Albert Beyleveld SC, said the consultation process followed the old Act’s regulations. “The process may be inadequate to reach everybody but there’s no process that can reach everybody. Until such time as the legislature has formulated a process better than the process, which is currently in position or was the position at the time, we are bound by those provisions of that process and there has been no attempt to set it aside.”
The applicants, he said, were required to first resort to internal remedies under the old MPRDA before bringing a court application.
Legal knobkierrie
Advocate Jeremy Gauntlett SC, counsel for Impact Africa, argued that the applicants were using a legal “knobkerrie” through the interdict to undermine Mantashe’s authority to decide the matter.
In his heads of argument, Gauntlett said it had been more than eight years since the government granted an exploration right authorising the exploration for oil and gas along the Wild Coast. “Two surveys have already taken place since 2008 in that very area, without outcry or, more important, any proof whatsoever of material harm arising from them. Yet such surveys have taken place for 50 years in the most highly regulated countries of the world, and for more than 20 years in South Africa itself. They are tried and tested, and compliant with international law, comparable foreign law, and South African national law.
“Yet at this stage an absolute perpetual ban on exploration — not production, but
exploration — is sought. And a declarator in terms operative against all holders of
such exploration rights. This, when as a matter of notoriety, within 13 years South
Africa must add 50 000MW — equal to replacing its entire energy fleet — to its grid
to cover the supply gap and replace retiring coal stations.
Gas or oil finds along South Africa’s coast “could solve both South Africa’s energy crisis and developmental needs and decrease Eskom’s and the country’s dependence on more pollutive coal”, he said.
On environmental harm, Ngcukaitobi said: “Contrary to the suggestion you’ve heard over and over again, the experts tell the court that harm is inevitable … If ever there was a case deserving of the precautionary principle, it is today’s case.”
Judgment was reserved in the matter.
[/membership]