Representatives of civic organisations and local communities picketed outside the Port Elizabeth High Court where the case to have Shell’s seismic survey rights set aside is being heard .
This is a disappointing outcome for the communities and supporting organisations that brought the case to the High Court in December 2021. These include Wild Coast communities and small-scale fishers, Sustaining the Wild Coast NPC and All Rise Attorneys for Climate and the Environment NPC, represented by the Legal Resources Centre and Richard Spoor Incorporated. Natural Justice and Greenpeace Africa, represented by environmental law firm, Cullinan & Associates, also joined the case.
The decision-makers 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. Onto the merits of the case, the SCA focused firstly on one particular issue, that of the inadequate consultation process used by Impact Africa and Shell in the process of applying for and renewing the exploration right. Relying on the general principles of consultation that were set out in the Constitutional Court matter of Bengwenyama, the SCA confirmed that the consultation process had been inadequate.
The SCA directed that, in relation to the third renewal application, that"a further public participation process be conducted to cure the identified defects in the process already undertaken, especially as the parties who claim to have an interest in the matter have now been identified...." It remains unclear how a renewal process can cure the fatal defects of the original exploration right.
"We are delighted that the SCA has upheld the High Court's decision, reaffirming the importance of recognising and respecting the rights of local, directly affected communities. However, it is disappointing that the Court thought it prudent to give Shell and Impact the chance to get a renewal of an invalid exploration right approved. It is not clear how the renewal of a permit, ten years after it was first granted, can possibly cure the original sin.
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South African Court Blocks Shell’s Seismic Survey After AppealThe Supreme Court of Appeal has dismissed, with costs, the appeal by Shell, Impact Africa, and the Department of Mineral Resources and Energy (DMRE), which sought to overturn a High Court ruling that had halted an oceanic seismic survey off the Wild Coast.
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