The Minister of Mineral Resources and Energy, Impact Africa and Shell have filed an application in the Gqeberha High Court for leave to appeal the watershed ruling that the government’s authorisation to conduct seismic surveys off the Wild Coast of South Africa was unlawful.
Coastal communities and fisherfolk have challenged the application along with the organisation Sustaining the Wild Coast, All Rise, Natural Justice and Greenpeace Africa, represented by the Legal Resources Centre, Richard Spoor Attorneys and Cullinan & Associates.
The Makhanda High Court handed down the historic judgment on September 1, which found that the decision to grant an exploration right was procedurally unfair on several grounds, including failure to consider the communities’ spiritual and cultural rights, their right to food and the potential climate change implications. The ruling, which grabbed international attention, was considered a huge victory for local people and the planet.
The minister granted authorisation for the exploration right on the basis of an Environmental Management Programme developed by Impact Africa in 2013 in terms of the Mineral and Petroleum Resources Development Act. Impact Africa did not undertake an environmental impact assessment or obtain an environmental authorisation in terms of the National Environmental Management Act before it commenced the survey.
The court set aside the decision to provide authorisation as there had been no consultation with the affected communities who live on the coastline and who depend on the ocean to sustain their livelihoods. In addition, the court held that consultation with traditional leaders and not with wider communities, was insufficient to be considered meaningful engagement.
Additional grounds for the court’s decision included the minister’s failure to take into account climate change and the desirability for oil and gas development in South Africa, in light of the climate emergency. The court also found that the minister had failed to consider all relevant factors such as the Integrated Coastal Management Act, climate change and the cultural rights and spiritual beliefs of the affected coastal communities.
Shell, Impact Africa and Minister Mantashe have applied for leave to appeal against the entire judgment. The matter was expected to be argued in court on Monday.
