Shell’s bid for offshore seismic surveys hits another legal hurdle

The Eastern Cape High Court sees little chance of success for Shell overturning an earlier court decision denying its bid to carry out seismic surveys off the Eastern Cape coast, but says that the matter is of sufficient public interest to justify a hearing at the Supreme Court of Appeal (SCA).

The court issued a ruling on Tuesday (December 13) that granted permission to Shell, Impact Africa and the Minister of Mineral Resources and Energy to appeal to the SCA.

He said he took this decision because matters of public importance had to be heard before the higher courts.

There are nine applicants in the case, including non-profit organizations Sustaining the Wild Coast, All Rise Attorneys for Climate and the Environment, Dwesa-Cwebe Communal Property Association, Natural Justice and Greenpeace.

The respondents are the Minister of Mineral Resources and Energy, the Minister of Environment, Forestry and Fisheries, Shell Exploration and Impact Africa.

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Previous win

Earlier this year, environmental and community activists won a major victory against Shell and the Minister of Mineral Resources and Energy when the same court ruled that the exploration rights allowing Shell to conduct seismic surveys on the Wild Coast were illegal These rights had been extended twice since 2014.

In December 2021, an injunction against seismic surveys was granted on the grounds that affected communities had not been properly consulted.

In making this decision, the court considered the potential for lasting damage to the surrounding ocean, as well as the impact on the spiritual and cultural life of nearby communities.

Having won an injunction against Shell, the applicants went to court to review and overturn the minister’s original decision to grant the rights.

Arguments for stopping the surveys included the ecological importance of the area, and the fact that although Shell and Impact Africa got an Environmental Management Program approved under the Mineral and Petroleum Resources Development Act (MPRDA ), this is not equivalent to environmental authorization under the National Environmental Management Act (NEMA).

READ ALSO: Seismic Survey of the Wild Coast: Judgment Reserved on Leave to Attempt to Appeal

The latest decision has been celebrated by environmental and community groups that have taken on the minister and Shell in a legal battle that has lasted several years.

“We are not surprised by today’s outcome,” said Melissa Groenink-Groves, an attorney with Natural Justice, one of the applicants in the case.

“The court granted leave to appeal based on public importance. This case is critical in establishing important judicial precedents related to oil and gas exploration.

“This case is about what constitutes meaningful public participation and the importance of considering the impacts of oil and gas developments related to climate change, cultural heritage and the interests of the entire marine community,” he said.

“We stand firm on the merits and welcome the Supreme Court of Appeal’s consideration of this matter.”

A “binding precedent” is expected.

Cormac Cullinan, of Cullinan & Associates, who is representing two of the nine applicants in the case, believes the SCA will uphold the Eastern Cape High Court’s previous ruling and set important precedents that bind all other high courts.

“It is particularly important that the SCA upholds the rights of both the public and those most directly affected to participate in decisions about new fossil fuel projects and ensures that no offshore exploration or drilling is authorized in the absence of a full of the “Implications of climate change, the potential impacts on marine species and people who depend on coastal environments and a consideration of whether these projects are necessary and desirable”.

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Wilmien Wicomb of the Legal Resources Center told a post-trial webinar in September that the case was about the legality of the minister’s decision to grant Shell an exploration permit in 2014 and subsequently renew it.

Shell argued that it had engaged extensively with a range of interests, including community leaders.

The court considered this to be a relic of the colonial past, and consultation with communities requires more than just knowing local leaders.

Communities are made up of people, and it is these people who must be consulted.

The court detailed what engagement with communities means and that it should not be a checklist exercise. There was also little evidence before the court of Shell’s claims that the project would bring enormous income and prosperity to the area.

Mantashe “hardly impartial”

One of Shell’s arguments was that its opponents lacked standing to go to court because they had not exhausted domestic remedies under the Promotion of Administrative Justice Act.

The applicants responded that Mineral Resources and Energy Minister Gwede Mantashe could hardly be considered an impartial agent given his stated support for the seismic survey program when he stated in 2021:

“We regard the objections to these developments as apartheid and colonialism of a special kind, disguised as a strong interest in environmental protection.”

READ ALSO: Seismic survey of the Wild Coast: Judgment reserved on authorization of attempted appeal

The applicants argued that they followed the letter of the law in consulting with the public and that no higher standards can be required.

“The communities and NGO partners also sought leave to cross-appeal the tribunal’s decision not to consider whether Shell and Impact Africa required environmental clearance before commencing their seismic survey,” a statement said issued on Tuesday by communities and NGOs opposed to Shell. seismic surveys.

“This is because a declarant will provide clarity about the scope and nature of the obligations [NEMA]as well as the MPRDA, which will then give effect to Article 24 of the Constitution. “

The plaintiffs’ “cross-appeal” was also accepted in Tuesday’s ruling.

The SCA is expected to hear the matter in 2023.

This article originally appeared on Moneyweb and has been republished with permission.
Read the original article here.

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