Wild Coast communities and environmental groups appeal Shell judgment at Constitutional Court

On July 2, Wild Coast communities, Sustaining the Wild Coast, All Rise Attorneys, Natural Justice, and Greenpeace Africa filed petitions in the Constitutional Court, appealing against the Supreme Court of Appeal’s (SCA) decision regarding Shell’s exploration rights on the Wild Coast of South Africa.

This legal battle centres on the right granted to Shell to conduct seismic testing, a decision the petitioners argue undermines the rights of local communities and the environment.

The Makhanda High Court previously found that Shell’s exploration right was unlawfully granted due to a lack of consultation with affected communities and the neglect of significant considerations such as the right to food, livelihoods from the ocean, cultural rights, and climate change impacts.

The court ruled that the Minister of Mineral Resources and Energy failed to comply with the Integrated Coastal Management Act, resulting in the setting aside of Shell’s exploration rights entirely.

Despite this, the SCA upheld the High Court’s judgment but suspended the order to set aside the exploration right pending a decision on Shell’s third application to renew it.

The Wild Coast communities and environmental groups argue that this suspension is not “just and equitable” as required by the Constitution. They contend that it allows Shell a chance to rectify its previous failures in the consultation process, a concession the law does not permit so long after the fact.

Sinegugu Zukulu from Sustaining the Wild Coast expressed hope that the Constitutional Court would uphold the rights to a safe and healthy environment, highlighting the urgent need to protect marine ecosystems and move away from fossil fuels.

“We hope the Constitutional Court will be able to hear our voices about how critical it is to protect marine ecosystems for both livelihoods and for the sake of marine living resources. We hope the Justices realise that the time for fossil fuels is over as is continually articulated year after year by the IPCC reports. We believe the Constitutional Court is the right court to uphold our rights to a safe and healthy environment protected for sustainable development,” Zukulu said.

The environmental justice organisations argue that the SCA’s order is both constitutionally impermissible and legally incompetent, calling for the Constitutional Court to set it aside. They assert that the order fails to protect the communities’ rights to fair administrative action, livelihoods, and cultural and spiritual rights.

Additionally, the order lacks clarity on the remedial actions Shell and the Minister must take, inevitably leading to further litigation.

Wilmien Wicomb from the Legal Resources Centre emphasised the importance of holding multinational corporations accountable for their actions, arguing that the SCA’s order potentially gives Shell a free pass despite its legal failures.

“It is important for companies, in particular powerful multinational corporations, to carry the consequences of their actions. The SCA’s order potentially gives Shell a free pass despite dismally failing to comply with what the law requires for exploration rights. That is not the message we should be sending to corporations, in particular those in the business of fossil fuel extraction,” Wicomb stated.

The SCA’s decision to provide Shell another opportunity to secure the exploration right, rather than fully setting it aside, was deemed “too harsh” by the court. However, the organisations argue that there is no need to soften the impact of the order, insisting that Shell must face the consequences of its legal non-compliance.

Melissa Groenink-Groves from Natural Justice stressed the need for the Constitutional Court to focus on what is just and equitable for those whose rights have been infringed, rather than the interests of multinational companies.

“It is imperative in the public interest that the Constitutional Court makes a final ruling on the commercial repercussions of infringing Constitutional rights, in circumstances where communities are unable to meaningfully engage in decisions that will directly affect them. What is just and equitable to those whose rights have been infringed should be the central consideration, and not the bottom-lines of multinational companies,” she said.

The petitioners also noted their intention to appeal the SCA’s failure to address their cross-appeal on whether Shell required an environmental authorisation under the National Environmental Management Act for its exploration activities.

This critical question remains unresolved, potentially allowing Shell to proceed with exploration without proper environmental authorisation.

This case brings significant constitutional questions to the fore, particularly concerning the “just and equitable relief” granted by the SCA under section 172(1)(b) of the Constitution. The outcome could have broad implications for how courts provide remedies when a decision is declared unlawful.