Judgment is set to be handed down on Thursday as the second part of the legal challenge to stop Shell’s planned seismic blasting off the Wild Coast plays out at the Makhanda High Court, with Thursday’s proceedings following a two-day hearing held on May 30 and 31.
The case was brought by Sustaining the Wild Coast NPC, Wild Coast communities, Wild Coast small-scale fishers, and All Rise Attorneys for Climate and the Environment, represented by the Legal Resources Centre and Richard Spoor Attorneys.
Natural Justice and Greenpeace Africa applied to join the case, represented by environmental law firm, Cullinan and Associates.
Natural Justice said in a media release that the applicants seek to review and set aside the 2014 decision by the Department of Mineral Resources and Energy to grant an exploration right to Shell and Impact Africa to conduct seismic surveys off the ecologically sensitive Wild Coast of South Africa.
Although Shell argued it should not be obliged to conduct an environmental impact assessment (EIA) as an EIA was not a legal requirement when it applied for its permit in 2013, the applicants contended the survey would cause serious and irreversible harm to the marine environment and call for a strict application of the precautionary principle that Shell should be required to conduct an environmental impact assessment, based on the best available science, which has advanced considerably since Shell’s permit was granted in 2014.
Further grounds include the lawfulness of conducting a seismic survey without environmental authorisation; inadequate public participation; failure to consider climate change and the interests of the whole community; and procedural unfairness.
The applicants said the exploration right was granted unlawfully as there were no consultations with affected communities and that the companies’ consultations with traditional leaders was insufficient.
They said even if Shell’s exploration right was lawful, Shell should not be permitted to conduct seismic blasting without environmental authorisation under the National Environmental Management Act (NEMA).
In awarding the exploration right, the decision-makers failed to consider the contribution of oil and gas exploitation to climate change.
The decision-makers also failed to consider the Integrated Coastal Management Act and its requirement to consider the interests of the entire community - including fishers and ocean life.
The applicant’s requested that the court review and set aside the DMRE’s decision to grant the exploration right to Impact Africa in April 2014, the DMRE’s decisions to renew the exploration right in December 2017 and August 2021, and to grant a final interdict prohibiting Shell from undertaking seismic survey operations under the exploration right.
If successful, several flawed decisions on the part of the DMRE will be set aside, while Shell and Impact Africa will be prohibited from undertaking seismic surveys under the exploration right in question.
In effect, Shell and Impact Africa would need to reapply for an exploration right to explore for oil and gas along the Wild Coast.
Furthermore, the case also seeks a declaration that an EMPR under the MPRDA is not equivalent to an environmental authorisation under NEMA. Thus, a holder of an exploration right under the MPRDA may not undertake any seismic survey if it has not been granted environment authorisation.
This will ensure that any future seismic testing abides by the dictates of the law, including the adequate public participation processes, need and desirability assessments and environmental impact assessments that obtaining an environmental authorisation under NEMA requires.