The Eastern Cape High Court on Tuesday granted Shell, Impact Africa and the minister of mineral resources and energy leave to appeal a court ruling that halted the oil giant’s oil exploration plans off the Wild Coast of South Africa.
This follows the leave to appeal hearing which took place on November 28 in which Shell appealed the watershed judgement of the Makhanda High Court that was handed down on September 1. The original order found that the exploration right granted by the minister under the Mineral and Petroleum Resources Development Act (MPRDA) to allow Shell to conduct seismic surveys off the ecologically sensitive Wild Coast of South Africa was unlawful.
In its latest judgement, the court found that, while it could see no prospects of success for the appeal, it would grant leave to appeal because issues of such public importance should be heard before the higher courts. It reiterated that the leave to appeal had been granted for the entire judgement.
The applicants who took Shell and the minister to court, including Wild Coast communities, Sustaining the Wild Coast, All Rise, Natural Justice, and Greenpeace Africa, said in a joint statement that they were confident that a higher court would rule in their favour. In the Makhanda High Court, the main issues that were argued related to an exploration right granted to Impact Africa and Shell which would allow them to conduct seismic testing off the coastline. Environmentalists and fisherfolk argued that this was unlawful because of a lack of meaningful public participation, lack of consideration of the cultural rights of communities, and because an environmental impact assessment should have been conducted.
On appeal, Shell, Impact Africa and the minister of mineral resources brought two preliminary issues: the delay by the communities and NGO partners in the bringing of the review and whether the communities and the NGO partners should have pursued an internal appeal to the minister before approaching the court, in terms of the Promotion of Administrative Justice Act. They also argued that they had followed the letter of the law in consulting with the public.
The court found that both applications “lacked reasonable prospects of success”. However, it agreed with the parties that the significant importance of the matter justified a higher court hearing of the issues.
Natural Justice attorney Melissa Groenink-Groves said the applicants were not surprised at the outcome, given the huge public importance of the matter.
“This case is critical for setting important judicial precedents relating to oil and gas exploration. This case deals with what constitutes meaningful public participation, and the importance of considering the impacts of oil and gas developments relating to climate change, cultural heritage, and the interests of the whole marine community. We are strong on the merits and welcome the Supreme Court of Appeal’s consideration of this matter,” Groenink-Groves said.
Melita Steele, Greenpeace Africa programme director, said the organisation was “not deterred” by the court's decision.
“The outcome of this case will have far-reaching impacts on the livelihoods of local communities and the survival of biodiverse ecosystems, and we will continue to support the Wild Coast communities' resistance against Shell and pursue the legal avenue to stop Shell. We must do everything we can to undo the destructive colonial legacy of extractivism, until we live in a world where people and the planet come before the profits of toxic fossil fuel companies,” Steele said.
