Let the people judge: Activists march from Hanover Street in Cape Town to parliament demanding that the government respond to the climate crisis and their environmental rights are not trampled by multinational corporations’ gas and oil explorations. Photo: Jaco Marais/Gallo Images
Oil and gas exploration in Africa remains strong despite global commitments to limit global warming to 1.5°C above preindustrial levels. For one, discoveries in Namibia’s Orange Basin in 2022 have continued to hold centre stage with Shell’s July announcement of successful drilling of a fourth exploration well and further indicated presence of hydrocarbons.
This explains the sharp increase in exploration activities in Southern Africa and how the region has continued to be of top priority for multinational oil and gas companies such as Shell and TotalEnergies.
South Africa’s Wild Coast is no different; it also holds significant oil and gas reserves. Shell, one of South Africa’s long-term corporate citizens, was among the first multinationals to propose offshore exploration activities in the region.
Unlike in Namibia, Shell South Africa’s interest to explore for offshore oil and gas was challenged and ultimately rejected by interested and affected parties, including local associations, human and environmental justice organisations and residents of the Wild Coast region. Why?
This was the question Good Governance Africa (GGA) had in mind in December 2021 when a court interdict application was brought forward by above mentioned groups against Shell, challenging the method of seismic surveying to explore for offshore oil and gas.
The process of 3D seismic surveying involves extremely loud underwater explosions or discharges at 10 to 20 seconds, which continue 24 hours a day for four to five months. It thus became clear why resistance from local and international environmental justice organisations grew, given the potential negative effect the process may have on marine ecosystems.
With these developments, more questions were raised that required further interrogation. This included assessing the interplay between natural resource governance and environmental concerns and understanding the processes by which the public was consulted.
Additionally, we aimed to understand whether these processes were congruent with local development plans and whether they followed regulatory frameworks that are obligated to make provisions for such requirements.
The GGA, with support from the Southern Africa Trust, conducted field research and produced a study tackling these critical governance questions. The proposed offshore exploration by Shell dates to early 2013. Impact Africa Limited, an oil and gas exploration company in the United Kingdom, had initially applied for an exploration right in terms of section 79 of the Mineral and Petroleum Resources Development Act. As part of this application, an environmental management programme, as required under the National Environmental Management Act (Nema) was submitted for approval in terms of what was then section 39 of the Mineral and Petroleum Resources Development Act.
This exploration right covered exploration areas from Port Elizabeth to Ramsgate. Upon submission, the Petroleum Agency of South Africa (Pasa) accepted the application in March 2013 and required a public participation process to be conducted in March and April 2013.
Subsequently, a draft environmental management programme was made available for public comment in May and June 2013. In April 2014, the mineral resources and energy minister and Pasa issued Impact Africa with an exploration right and renewed it 2017 and 2020.
In December 2021, in an open letter addressed to the president and the departments of mineral resources and energy and of forestry, fisheries and the environment, leading marine scientists expressed concerns about harmful effects on marine ecosystems and coastal communities that could result from offshore seismic surveying.
The letter highlighted the growing body of scientific research that points to the immediate and long-term and largely irreversible potential damage of seismic surveying. This includes marine creatures that are acoustically sensitive such as whales, dolphins and plankton that make up valuable marine ecosystems upon which coastal communities and economies depend for subsistence livelihoods and tourism.
Subsequently urgent interdict applications were brought forward challenging the seismic surveying on behalf of interested and affected parties including local associations, human and environmental justice organisations and residents of the Wild Coast region.
Concurrently, protest action organised by relevant environmental groups such as Greenpeace Africa, Eastern Cape Environmental Network, and South Durban Community Environmental Alliance was gaining significant international media coverage. In the application for an interim interdict, applicants outlined inconsistencies between the Mineral and Petroleum Resources Development Act and Nema, among other issues which have been analysed in our report.
In the application for an interim interdict, applicants outlined that the exploration right was granted without any meaningful public participation, environmental impact assessment and specific consideration of whether the survey’s likely harms are justifiable in the context where production would intensify climate change.
Hence, deeper concerns about climate change mitigation and commitments were raised in understanding and examining how the environmental management programme was approved. According to the marine scientists, the environmental management programme was drafted by consultants with no formal marine biological training and therefore did not take any new marine ecological and social impact evidence into account.
Upon several court hearings, an interdict judgment in December 2021 was delivered by the Eastern Cape high court interdicting Shell from undertaking seismic survey operations under exploration right 12/3/252.
Subsequently, Shell and Impact Africa appealed the judgment, and the high court dismissed the application in February 2022. To date, the Makhanda high court has ruled that the exploration right granted to Impact Africa and Shell was unlawful because no meaningful consultation was conducted with interested and affected parties prior to granting the exploration right.
In acquiring a mining right, mining companies ought to conduct meaningful consultation with interested and affected parties, as required by the Mineral and Petroleum Resources Development Act. Meaningful consultation is the willingness to consult in good faith, in a way that gives interested and affected parties all relevant information and reasonable time to make informed decisions regarding the impact of proposed mining exploration and activities.
As part of the field research, interviews were conducted in uMgungundlovu, Dwesa-Cwebe, Port Edward and Port St Johns with relevant stakeholders and residents. Participants were encouraged to share their experiences and understanding of Shell’s proposed exploration activities. The key findings are shared in summary form highlighting key takeaways from participants.
Representatives of uMgungundlovu, Dwesa-Cwebe and Port St Johns indicated that Shell’s exploration right was invalid because people were not adequately consulted, and the court indeed ruled that Shell’s consultation process was inadequate and substantially flawed.
The consultation process disregarded indigenous community custom. Shell indicated that it consulted traditional leaders and assumed that they would speak on behalf of the residents.
This highlights the problematic nature of a top-down approach to decision-making and overlooks nuances in customary law and its practice.
In theory, custom requires that there are multiple levels of authority, and decision-making extends upwards through households, extended family, clan name and to the wider community.
With oil and gas exploration going strong in the Southern Africa region, it has become evident that a top-down approach in execution of exploration projects will simply not be justifiable nor lawfully sound.
Reworking a coherent, clear, and streamlined mining and environmental management regulation framework is central to administering mining rights that are agreed upon by all stakeholders involved. To realise the region’s development goals, a more inclusive approach to resource governance and environmental management will be key. It is a necessary condition for ensuring broad-based development from all future mining projects.
Busisipho Siyobi is the head of the natural resource governance programme at Good Governance Africa.