Court finds Shell’s exploration right in South Africa ‘unlawful’

The High Court in Makhanda has ruled that Shell’s exploration right to conduct seismic surveys on the Wild Coast of South Africa was granted unlawfully, setting it aside and putting an end to the months-long battle between climate activists and the oil major.

The case sought to review the exploration right that the Department of Mineral Resources and Energy (DMRE) granted to Shell and Impact Africa in 2014, allowing them to conduct seismic surveys off the Wild Coast of South Africa, in pursuit of oil and gas.

The seismic surveys would involve a ship towing high-volume airguns which would blast low-frequency sounds at the seabed in regular intervals in order to map the seabed for oil and gas.

The applicants argued that the right should not have been granted on various grounds:

• That the exploration right was granted unlawfully since there was no consultation with affected communities and that the companies’ consultations with traditional leaders were insufficient. 
• In awarding the exploration right, the decision-makers failed to consider the potential harm to the fishers’ livelihoods, the impact on their cultural and spiritual rights and the contribution of oil and gas exploitation to climate change. 
• In awarding the exploration right, the decision-makers failed to consider the Integrated Coastal Management Act and its requirement to consider the interests of the entire community – including fishers and also ocean life. 

The High Court ruled in favour of the applicants on all the grounds of review, finding that it was incorrect for consultations to only be conducted with kings, monarchs and other traditional leaders

Next, the court found that due to the apparent dispute between expert evidence on the harms of seismic testing to marine life, a precautionary approach should have been adopted by the decision-maker.

Furthermore, the judge acknowledged the key role of the ocean in the livelihoods and spiritual and cultural life of coastal communities, saying that there is no evidence, that the decision-makers took the potential harm to these religious and ancestral beliefs and practices into account, which rendered the decision unlawful.

The court also found that the Integrated Coastal Management Act (ICMA) needed to be considered in the decision-making process, pointing out that the Minister was duty-bound to consider the ICMA and this in itself, means that the exploration right must be reviewed. 

Ever since late November 2021, the controversial seismic survey has been facing strong opposition from environmentalists and fishermen, who claim that it would harm marine life, especially since the timing of the survey was scheduled during the migration season for humpback whales.

At the time, Natural Justice and Greenpeace Africa, with two other applicants, represented by environmental law firm Cullinan & Associates, applied to the Grahamstown High Court seeking an urgent interim interdict to stop the kick-off of the seismic testing.

The application was unsuccessful, however, a successful interdict was obtained a few weeks later.

This was followed by Shell’s decision to terminate the current contract for the survey vessel Amazon Warrior which was supposed to acquire more than 6,000 sqkm of 3D seismic data offshore South Africa.

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