Coastal communities and NGOs will soon be seeing themselves return to the courtroom as Shell, Impact Africa, and the Minister of Mineral Resources and Energy Gwede Mantashe seek leave to appeal the judgment which stopped Shell and Impact Africa’s unlawful oil and gas exploration right off the ecologically sensitive Wild Coast in the Eastern Cape.
Even after having recently won a landmark judgment setting aside the exploration right that enabled Shell to conduct seismic survey explorations for oil and gas off the ecologically sensitive Wild Coast, Wild Coast communities and environmental NGOs will be returning to court following the lodging of three applications for leave to appeal.
On September 20, Impact Africa lodged an application for leave to appeal the Makhanda High Court ruling, and the Minister of Minerals and Energy and Shell lodged similar applications on September 22.
The tightly-reasoned judgment of three judges of the Eastern Cape High Court on September 1 was internationally recognised as a resounding victory for social and environmental justice.
The judges found that the granting of the exploration right and its implications had not been made known to affected communities and that “the mere ticking of a checklist” did not constitute meaningful consultation and set aside the decision to grant the exploration right on the basis that it was not only procedurally unfair, but also that it failed to pass muster on several other grounds.
These include the failure to take account of relevant information, including climate change and the right to food, a failure to take account of the Integrated Coastal Management Act (ICMA), and the failure to comply with various legal requirements such as the requirement to create opportunities for historically disadvantaged people to participate in the minerals and petroleum industries.
Shell, Impact Africa and Mantashe are seeking leave to appeal on various grounds. Notably, they argue that the public had been properly notified of the decision to grant the exploration right 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 was wrong to deal with exploration as a step in a single process that culminates in the production and combustion of oil and gas and was incorrect in applying the precautionary principle to the expert evidence on the harms of seismic surveys.
Shell argued that the court was wrong to conclude that the public statements made by Mantashe gave rise to a reasonable apprehension of bias and that lodging an appeal to him would have been an exercise in futility.
Cullinan and Associates director, Cormac Cullinan, said that “the Makhanda High Court judgment found Minister Gwede Mantashe to be biased in favour of the oil and gas industry. It is dangerous and irresponsible to continue with activities that drive climate change and will contribute to untold suffering in Africa.”
Delme Cupido, Southern Africa hub director for Natural Justice said in a press release that “it is disappointing that minister Mantashe, has chosen to appeal the historic judgement of a full bench of the High Court, which recognised and affirmed the rights of communities to be properly consulted on developments that will impact on their livelihoods, food security and cultural and spiritual rights.”
Expressing her disappointment on behalf of Greenpeace Africa, Thandile Chinyavanhu, climate and energy campaigner for the NGO said: “Minister Mantashe has made his bias clear, that he is on the side of profit, not people. Seismic blasting off the Wild Coast will only destroy the lives and livelihoods of the people who live there.
“It is delusional to think that fossil fuels will save unemployed South Africans, solve the energy crisis, or provide decent employment for the people of South Africa. In reality, extracting more fossil fuels will only drive 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 peddled by fossil fuel companies, in and out of the courts.”
Speaking on energy security, Cullinan said that “if we want to see the end of load shedding, we cannot wait more than a decade for costly, harmful mega-projects to come on stream. Energy modelling proves that renewables are the quickest and cheapest way to get much-needed capacity onto the grid.”
“The South African economy cannot afford more investment in wholly unnecessary fossil fuel infrastructure destined to become stranded assets,” Cullinan concluded.
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