Impact Africa, the Minister of Minerals and Energy and Shell have applied for leave to appeal against a Mahanda High Court decision that halted illegal oil and gas exploration off the environmentally sensitive Wild Coast. The court found that the Department of Minerals and Energy failed to take into account the communities’ spiritual and cultural rights and their rights to livelihoods, the potential effects of climate change and the expected harm to marine and bird life along the Eastern Cape coast. Various organizations, including Greenpeace Africa, have raised the issue of the predatory nature of the treatment, but Mantashi and his team insist it is a pointless and harmful practice. It would be better to direct their energies to solving Eskom and the energy crisis in South Africa. – Sandra Lawrence
Shell, Impact Africa and Minister Montashe seek to appeal the Wild Coast seismic survey decision
Coastal communities and NGOs are set to return to court as Shell, Impact Africa and the Minister of Mineral Resources and Energy seek permission to appeal a ruling that halted illegal oil and gas exploration by Shell and Impact Africa off the environmentally sensitive Wild Coast.
Wild Coast communities and environmental NGOs, who recently won a landmark ruling to overturn an exploration right that allowed Shell to conduct seismic searches for oil and gas in the environmentally sensitive Wild Coast, are to return to court after filing three applications for permission to appeal. . On September 20, Impact Africa applied for leave to appeal against the High Court decision in Mahanda, while the Minister of Minerals and Energy and Shell made similar submissions today (September 22).
The strongly motivated decision of three judges of the Eastern Cape High Court on 1 September 2022 was internationally recognized as a resounding victory for social and environmental justice. The judges found that the granting of the right to explore and its implications had not been brought to the attention of affected communities and that a “mere tick on a checklist” did not constitute meaningful consultation. The court overturned the right-to-exploration decision on the grounds that it was procedurally unfair, but also noted that it failed to withstand scrutiny on several other grounds, including failure to take into account relevant information, including climate change and the right to food, of the Integrated Coastal Management Act (ICMA) and failure to comply with various statutory requirements such as the requirement to create opportunities for disadvantaged people to participate in the mining and oil industry.
The court found that the Department of Minerals and Energy failed to take into account the communities’ spiritual and cultural rights and their rights to livelihoods, the potential effects of climate change and the expected harm to marine and bird life along the Eastern Cape coast. It ruled that Impact and Shell had to show that the precautionary principle should not apply when experts disagreed on whether the negative effects of seismic research had been adequately mitigated.
In a word, on all grounds of verification, the court decided in favor of the applicants.
The application was submitted by Wild Coast Residents and Fishermen, Dwesa-Cwebe Community Property Association and Sustaining the Wild Coast NPC and All Rise Attorneys, who were represented by the Legal Resource Center and Richard Spohr Solicitors. They were joined by Natural Justice and Greenpeace Africa, represented by environmental law firm Cullinans and Associates, which launched the first application to ban seismic exploration. The court commended Natural Justice and Greenpeace Africa for joining this litigation rather than proceeding with separate proceedings, as they were entitled to do.
Importantly, the decision did not condemn allegations that the communities were simply opposed to development, and pointed to the fact that a proper assessment of the need and desirability of such oil and gas exploration had not been made, and the claimed benefits were unfounded. It found: “There are no details to support these claims; no explanation is provided as to how jobs will be created, how the economy will be stimulated or how seismic exploration will improve the socio-economic circumstances in which the majority of South Africans live.’
Grounds of appeal
Shell, Impact Africa and the Minister seek leave to appeal on various grounds. Notably, they argue that the public was properly notified of the decision to grant the right to explore and that the court should not have allowed the decision to be challenged so long after it was made. They also argue that the court erred in treating exploration as a step in a single process that culminates in oil and gas extraction and flaring, and erred in applying the precautionary principle to expert evidence on the harm of seismic surveys. Shell also argues that the court erred in concluding that the public statements made by Minister Montashe gave rise to reasonable apprehensions of bias and that an appeal to him would be futile.
Cullinan and Associates director Cormac Cullinan says:
“The decision of the Mohandas High Court found Minister Gwede Montashe biased in favor of the oil and gas industry. Shell, Impact Africa and Minister Gwede Montashe want permission to appeal so they can continue to invest in South Africa’s increasing dependence on fossil fuels and climate change. It is dangerous and irresponsible to continue activities that contribute to climate change and cause untold suffering in Africa. As the UN Secretary General stated in April of this year, “we are rapidly moving towards a climate disaster… . … This is not fiction or exaggeration. This is what science tells us will be the result of our current energy policies. …. … Some government and business leaders say one thing and do another. Simply put, they lie. And the results will be disastrous. This is a climate emergency.”1
“We are confident that our defense team and the combined efforts of attorneys at Cullinan and Associates, the Legal Resource Center and Richard Spoor and Co will successfully oppose this further attempt to legitimize harm to the human and environmental communities of the Wild Coast in the pursuit of fossil fuels.”
Ricky Stone, a solicitor at Cullinan and Associates, says: “Seismic blasts pose an immediate threat to South Africa’s rich marine life, but the eventual extraction and use of oil and gas after such exploration will have even more serious consequences. It would be very important to focus on renewable and natural energy sources and leave oil in the ground and gas in the sea.”
Delme Cupido, director of the Southern African Center for Natural Justice, said: “It is disappointing that the regulator – Minister Montashe – has decided to appeal the historic decision of the full High Court which recognized and affirmed the right of communities to a decent life. consulted on developments that will affect their livelihoods, food security and cultural and spiritual rights. In addition to the known devastating effects of climate change, the potentially irreparable harm to marine and bird life, and the disregard for relevant legislation, Shell, Impact Africa and Minister Montashe are intent on disregarding the lives and rights of local and indigenous communities who are fighting this battle on behalf of all us and for the future of our planet.”
While Greenpeace Africa Climate and Energy’s Thandile Chinyavanhu said: “Greenpeace Africa is disappointed that Minister Montashe has clearly shown his bias: he is on the side of profits, not people. Seismic blasts off the Wild Coast will only destroy the lives and livelihoods of the people who live there. It is false to think that fossil fuels will save unemployed South Africans, solve the energy crisis or provide decent work for South Africans. In reality, extracting more fossil fuels will only push us deeper into the climate crisis. A just transition to renewable energy is the best and most immediate solution to South Africa’s problems. We will continue to resist the lies of fossil fuel companies in and out of court.”
Cullinan says: “If we want to end load-shedding, we cannot wait more than ten years for expensive, harmful mega-projects to come into operation. Energy modeling proves that renewable energy is the fastest and cheapest way to get much-needed power into the grid. The South African economy cannot afford further investment in completely unnecessary fossil fuel infrastructure that is destined to become useless assets.”
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