/ 1 September 2022

High court sets aside Shell seismic survey greenlit by Gwede Mantashe

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Mantashe, the court found, was “duty-bound” to take into account the considerations of the ICMA. “As a matter of fact, he did not do so. This, in and by itself, renders the impugned decision reviewable.”

The Makhanda high court set aside the exploration right that Minister of Mineral Resources and Energy Gwede Mantashe granted to Shell to conduct seismic surveys for oil and gas off the ecologically sensitive Wild Coast.

The order has set aside the exploration right granted to Impact Africa in 2014, which was later transferred to Shell, and set aside the subsequent renewals of the exploration right because these had been granted unlawfully.

“The court is satisfied that the review grounds meet the threshold,” wrote Judge President Selby Mfanelo Mbenenge in the judgment. “It is demonstrably clear that the decisions were not preceded by a fair procedure; the decision-maker failed to take relevant considerations into account and to comply with relevant legal prescripts.

“Therefore, the decision granting the exploration right falls to be reviewed under section 6(2) of Promotion of Administrative Justice Act and the principle of legality … It follows that if the exploration right is wrong in law, the renewals are legally untenable.”

The court agreed with arguments made by people fighting the exploration that the department had not considered the potential harm to the fishers’ livelihoods, the cultural and spiritual rights of local people and the climate impact.

The legal challenge was brought by the non-profit Sustaining the Wild Coast, 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 court case and were represented by environmental law firm Cullinan and Associates.   

They sought to review the decision by the department of mineral resources and energy to grant an exploration right to Shell and Impact Africa, granting them permission to conduct seismic surveys off the Wild Coast. 

The applicants argued that the exploration right was granted unlawfully because there was no consultation with affected communities and that the companies’ consultations with traditional leaders were insufficient.

In awarding the exploration right, the decision-makers had failed to consider the potential harm to the fishers’ livelihoods, the impact on their cultural and spiritual rights and the contribution of oil and gas exploitation to climate change. 

They argued that in awarding the exploration right, the decision-makers had failed to consider the Integrated Coastal Management Act (ICMA) and its requirement to consider the interests of the entire community – including fishers and ocean life.  

‘Ill-begotten stance’

The court was in favour of the applicants on all the grounds of review. 

On the issue of public participation, the court found: “It would seem Impact and Shell were content to consult with only the monarchs or the communities, adopting the ill-begotten stance that such consultations sufficed. That view was clearly incorrect … 

“In any event, the top-down approach whereby kings or monarchs were consulted on the basis that they spoke for all their subjects is a thing of the past, which finds no space in a constitutional democracy. There is no law, and none was pointed to, authorising traditional authorities to represent their communities in consultations. 

“Meaningful consultations consist not in the ticking of a checklist but in engaging in a genuine, bona fide, substantive, two-way process aimed at achieving, as far as possible, consensus especially in relation to what the process entails and the import thereof.” 

Impact Africa, the court found, did not give the applicant communities proper notice of the nature and purpose of the proposed seismic survey, the information required to make meaningful representation or the opportunity to make representations. 

Environmental harm

Regarding the harm to the environment, the court found that because there was a dispute between the parties about the mitigation measures to minimise the known effects of seismic surveys to marine and bird life, it was up to Shell and the department to prove otherwise. 

“It would have been incumbent upon the decision-maker to invoke the precautionary principle … The onus rests on the party refuting the applicability of the precautionary principle to establish that the principle is of no application.”

The court, too, found that, “The applicant communities contend that they bear duties and obligations relating to the sea and other common resources like land and forests; it is incumbent on them to protect the natural resources, including the ocean, for present and future generations; the ocean is the sacred site where their ancestors live and so have a duty to ensure that their ancestors are not unnecessarily disturbed and that they are content.” 

However, there was no evidence that the decision-makers took the potential harm to these religious and ancestral beliefs and practices into account, which rendered the decision unlawful.

In relation to climate change and the right to food, according to the judgment, had the decision-maker had the benefit of considering a comprehensive assessment of the need and desirability of exploring for new oil and gas reserves for climate change and the right to food perspective, “the decision-maker may very well have concluded that the proposed exploration is neither needed nor desirable”.

Special legal status

The court found that the area to which the exploration right applies enjoys a special legal status, that affords the environment within this area a particularly high level of protection, and necessitates that decisions affecting it be taken in a manner that complies with the requirements of the ICMA. 

“One of the objectives of ICMA is to introduce an integrated approach to management and, in this instance, the decision-maker did quite the opposite and dealt with the application as an energy-sector specific issue.” 

Mantashe, the court found, was “duty-bound” to take into account the considerations of the ICMA. “As a matter of fact, he did not do so. This, in and by itself, renders the impugned decision reviewable.”

Shell’s environmental management programme contained statements promising jobs and increased government revenue but “no detail to substantiate these claims is made; no explanation as to how the jobs will be created and how the economy will be stimulated or how the seismic survey will improve the socioeconomic circumstances in which most South Africans live is provided”.

The applicants, the court found, did not have to lodge an internal appeal as required by the Promotion of Administrative Justice Act, as the commencement of the seismic survey at the time of launching the application was imminent. 
“The public statements made by the minister do give rise to a reasonable apprehension of bias against the applicants and relieve the applicants and the intervening parties of the duty to exhaust their internal remedies as such appeal would have been an exercise in futility,” according to the judgment.