Wild Coast communities and environmental organisations have taken their fight against Shell and Impact Africa to the Constitutional Court, challenging a Supreme Court of Appeal (SCA) decision that could allow the energy giant to proceed with seismic surveys off the Eastern Cape coast. The case, which was heard this week, centres on whether Shell’s exploration rights, previously deemed unlawfully granted, can be renewed.
The legal battle began in 2021 when Shell announced plans for a seismic survey, which involves using airgun blasts to map the seabed for oil and gas reserves. Wild Coast communities, alongside groups like Sustaining the Wild Coast and Natural Justice, successfully argued in the Makhanda High Court in 2022 that the original exploration right, granted in 2014, was illegal. The court found that the Department of Mineral Resources and Energy had failed to properly consult affected communities, ignoring their cultural and spiritual rights, their right to food and livelihoods from the ocean, and the potential environmental impact.
However, while the SCA upheld the High Court’s findings, it suspended the invalidity of the exploration right. This suspension allows Shell and its partner, Impact Africa, to apply for a renewal of the right, a decision the Wild Coast communities are now challenging in the country’s apex court.
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The heart of the argument
Lawyers for the applicants argued that allowing a renewal process would perpetuate an illegality. They contend that the initial consultation process was so flawed that it cannot be fixed through a simple renewal application. The core of their argument is that meaningful, culturally sensitive consultation must happen before any rights are considered.
This includes providing information in local languages like isiXhosa and isiMpondo and using accessible platforms such as public radio. The applicants maintain that their cultural and spiritual connection to the ocean, as well as their livelihoods which depend on fishing, were completely disregarded.
Shell and the minister of Mineral Resources and Energy oppose the appeal. They argue that they were not to blame for the consultation failures and that setting aside the right entirely would have a “chilling effect on investment,” especially after over R1 billion has already been spent. They maintain that a new, fair consultation process can be conducted as part of the renewal application. For the Wild Coast communities, this is not enough, as they believe it undermines their fundamental right to be heard and to protect their ancestral lands and waters.
Image: Environmental groups and the community are at the Apex Court for leave to appeal a Supreme Court judgement in favour of Shell. [Katlego Jiyane/ EWN]
