Despite the Supreme Court of Appeal (SCA) ruling that Shell’s bid for exploration rights off the Wild Coast was unlawful, environmental activists have filed an appeal to the Constitutional Court.
This could lead to a landmark decision by SA’s highest court over the national struggle to balance environmental stewardship and energy needs for the country.
The SCA ruled in June that Shell, its SA partner, Impact Oil and Gas, and energy minister Gwede Mantashe had not properly consulted Wild Coast communities before granting exploration rights to the oil companies.
However, the SCA allowed recent renewal applications of exploration rights to remain in place that will go to Mantashe. He can then adjudicate and grant permission.
The members of the local community argue this is unlawful because allowing the process to continue at such a late stage does not “vindicate” their concerns that were upheld by the SCA. Shell, effectively, is being given “the chance to make up for [its] failed consultation process” by the SCA, the communities said.
Shell and Impact wanted to conduct seismic blasting off the Wild and were granted exploration rights to do so by Mantashe years ago. However, after the communities challenged the granting of those rights, courts ruled the communities were not consulted beforehand.
The SCA said in its June judgment there would be a “harshness” to Shell’s “exploration right being set aside” completely, and allowed Shell to use a renewal application it filed in 2023 instead of starting from scratch.
Legal Resources Centre attorney Wilmien Wicomb, representing the local communities and activists, said this was “fundamentally flawed”. This “will not address the concerns raised by the applicants,” she said in her application for leave to appeal in the Constitutional court. These concerns are “the impact of exploration on the environment, the inadequacy of mitigation measures and the negative impacts on their cultural and spiritual rights”.
Despite ruling that Shell’s exploration right was “set aside”, the SCA also suspended its own order on this. The effect of this is “Shell’s exploration right remains in force”, according to Wicomb. This means Shell has effectively obtained an exploration right “without environmental authorisation”, as is required under the National Environmental Management Act.
This will have large repercussions for all of SA, Wicomb said.
“At its core,” she said in her application, “the case concerns activities that are directed at the exploitation of natural resources of the coast of SA in a manner that has a profound effect on the surrounding communities and the environment.”
In this case, the fishing communities’ livelihoods are at risk because of a government decision they were never consulted on. “The commencement of prospecting activities will potentially impact on the rights and interests of thousands of SA residents.”
The minister, Shell and Impact have until later in July to file their responses.
In a statement, Shell SA’s spokesperson, Pam Ntaka, said the company was “currently reviewing the leave for appeal submissions”.
Ntaka noted: “Should viable resources be found offshore, this could significantly contribute to SA’s energy security and the government’s economic development programmes.”
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