Wild Coast communities appeal green-light ruling on Shell’s seismic testing

Shell South Africa has affirmed that its exploration rights to conduct a seismic survey off the Wild Coast in the Eastern Cape remained valid subject to further public consultation, and the renewal application on the back of an impending Constitutional Court challenge.

This comes as the Wild Coast communities, including Sustaining the Wild Coast, All Rise Attorneys, Natural Justice and Greenpeace Africa have filed petitions in the Constitutional Court to appeal the order of the Supreme Court of Appeal (SCA) that granted Shell’s exploration rights to conduct the seismic testing.

In the SCA, a successful high court judgment was upheld but the order to set aside the exploration right granted to Shell was suspended, pending a decision by the Department of Mineral Resources and Energy on Impact Africa and Shell’s third application to renew its rights.

In response to a Business Report yesterday, Shell SA spokesperson Pam Ntaka said they welcomed the SCA’s direction that the company’s exploration right remained valid.

“South Africa is reliant on energy imports for many of its energy needs. Should viable resources be found offshore, this could significantly contribute to South Africa’s energy security and the government’s economic development programmes,” Ntaka said.

“We are currently reviewing the leave for appeal submissions,” Ntaka added.

In their papers filed in the Constitutional Court, the Wild Coast communities and environmental justice organisations argued that the SCA’s order that allowed the minister to adjudicate Shell’s latest renewal application of the disputed exploration right is not “just and equitable”, as required by the Constitution.

The communities said the order was an attempt to give Shell the chance to make up for its failed consultation process when it applied for the rights over a decade ago, adding that the law did not allow such a late redemption.

Sinegugu Zukulu of Sustaining the Wild Coast said they hoped the Constitutional Court would be able to hear their voices about how critical it was to protect marine ecosystems for both livelihoods and for the sake of marine living resources.

“We hope the justices realise that the time for fossil fuels is over as is continually articulated year after year by the Intergovernmental Panel on Climate Change reports,” Zukulu said.

“We believe the Constitutional Court is the right court to uphold our rights to a safe and healthy environment, protected for sustainable development.”

The environmental justice organisations further argued that the SCA order was constitutionally impermissible and legally incompetent, and should be set aside by the Constitutional Court.

Wilmien Wicomb of the Legal Resources Centre said it was important for companies in particular powerful multinational corporations to carry the consequences of their actions.

“The SCA’s order potentially gives Shell a free pass despite it dismally failing to comply with what the law requires for exploration rights,” Wicomb said.

“That is not the message we should be sending to corporations, in particular those in the business of fossil-fuel extraction. Not only the future of the Wild Coast communities but of the whole country depends on it.”

The communities and organisations also noted an appeal against the failure of the SCA to deal with their cross-appeal which concerned the question as to whether Shell was required to obtain an environmental authorisation under the National Environmental Management Act before it could conduct its exploration activities.

Melissa Groenink-Groves from Natural Justice said it was imperative in the public interest that the Constitutional Court made a final ruling on the commercial repercussions of infringing of constitutional rights in circumstances where communities were unable to meaningfully engage in decisions that would directly affect them.

“What is just and equitable to those whose rights have been infringed on should be the central consideration, and not the bottom-lines of multinational companies,” Groenink-Groves said.

BUSINESS REPORT