Shell gas exploration in South Africa – case returns to court

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Coastal communities and NGOs must return to court as Shell, Impact Africa and the Minister of Mineral Resources and Energy seek permission to appeal the verdict that Shell and Impact Africa’s unlawful oil and gas exploration off the environmentally sensitive Wild Coast has stopped.

The wild coast communities and environmental NGOs that recently won a landmark ruling overturning the exploration rights that allowed Shell to conduct seismic explorations for oil and gas off the environmentally sensitive wild coast must return to court after filing of three appeals .

On September 20, Impact Africa filed a request to appeal the ruling of the Makhanda High Court, and the Minister of Minerals and Energy and Shell filed similar requests today (September 22).

The judgement

The ruling of three judges of the Eastern Cape Supreme Court of September 1, 2022 ruled that the granting of the exploration right and its implications had not been disclosed to the affected communities and that “just ticking off a checklist” did not constitute meaningful consultation.

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The court overturned the decision granting the exploration right on the grounds that it was procedurally unfair, but also noted that it was not approved on several other grounds, including failure to consider relevant information, including climate change and the right to food, failure to comply with the Integrated Coastal Management Act (ICMA) and to comply with various legal requirements, such as the obligation to create opportunities for historically disadvantaged people to participate in the mineral and petroleum industry.

The court ruled that the Ministry of Minerals and Energy had failed to take into account the spiritual and cultural rights of the communities and their right to livelihood, the potential impacts of climate change and the expected damage to marine and bird life along the East Coast. -Cape.

It ruled that Impact and Shell had the responsibility to demonstrate that the precautionary principle should not be applied where experts disagreed on whether the adverse effects of the seismic surveys had been sufficiently mitigated.

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the applicants

The application was filed by Wild Coast residents and fishermen, the Dwesa-Cwebe Communal Property Association, and the NGOs Sustaining the Wild Coast NPC and All Rise Attorneys, who were represented by the Legal Resources Center and Richard Spoor Attorneys.

They were joined by Natural Justice and Greenpeace Africa, represented by environmental law firm Cullinans and Associates, which had launched the first application to ban the seismic survey.

Grounds of appeal

Shell, Impact Africa and the minister are requesting leave on various grounds to appeal. Notably, they argue that the public was duly notified of the exploration grant decision and that the court should not have allowed the decision to be challenged so long after it was made.

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They also argue that the court erroneously treated the exploration as a step in a single process culminating in the production and combustion of oil and gas, and erred in applying the precautionary principle to the expert evidence on the harm of seismic surveys.

Shell also argues that the court erroneously concluded that Minister Mantashe’s public statements gave rise to a reasonable fear of bias and that appealing to him would have been a futile exercise.

“Seismic explosions pose an immediate threat to South Africa’s rich marine life, but the eventual extraction and use of oil and gas likely to follow such exploration will have even greater consequences. It would be critical to focus instead on renewable and natural energy sources and leave the oil in the ground and the gas under the sea,” said Cullinan and Associates attorney Ricky Stone.


Read: Shell gas exploration halted in South Africa

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