Oxfam South Africa on Friday said it “welcomes the ruling” of Judge President Mbenenge, presiding over the court case on the seismic oil exploration in the Wild Coast.
Sitting in the Makhanda high court on Thursday Judge President Mbenenge ruled the disputed authorisation was granted to Shell without proper consultation with coastal communities.
The ruling upheld a ban imposed on Shell from using seismic waves for oil and gas exploration off the Indian Ocean coast.
In December 2021, the Makhanda High Court issued an interim order prohibiting further activities by Shell.
The oil company had been granted the exploration right to conduct seismic surveys on the Wild Coast of South Africa despite protestations by subsistence fisher communities and environmental justice activists that the survey will cause significant environmental harm, which have a negative impact on sustainable livelihoods.
Concerned communities also raised the lack of adequate consultation with ocean facing communities who were going to be largely impacted by the project.
The court case was brought by Sustaining the Wild Coast NPC, Wild Coast communities, Wild Coast small-scale fishers and All Rise Attorneys for Climate and the Environment NPC, represented by the Legal Resources Centre (LRC) and Richard Spoor Attorneys.
Natural Justice, and Oxfam South Africa who are partners to the African Activists for Climate Justice project and Greenpeace Africa joined the court case, and were represented by environmental law firm, Cullinans and Associates.
Ultimately, the case was about the rights of communities to Free, Prior and Informed Consent (FPIC), an international legal principle which says that the full and informed consent of communities to be impacted by mega projects must be obtained prior to the commencement of such projects.
Commenting on the ruling, Greenpeace said: “This judgment is a massive victory for people in Africa fighting for a better planet – and we won’t stop there but the costs of court cases like these mount up.
“This comes after over 85 000 Greenpeace Africa supporters and local communities rose up to block Shell’s destructive plans.”
The ruling sets aside oil exploration rights of Shell.
In the context of the impending climate disaster characterised by extreme weather events such as droughts, flooding, and wildfires, among others, Oxfam South Africa’s position is that a just energy transition to low carbon development must be socially inclusive and should deliver socio-economic outcomes for marginalised communities who are most vulnerable to climate change impacts.
The direction of this system change must be determined by the needs of those at the coalface of the climate change crisis.
Therefore, their lived experiences should be centred in the ongoing public discourse and by focusing particularly on excluded and vulnerable groups such as women, youth, and indigenous people.
“It is high time the Department of Mineral Resources and Energy (DMRE) put the people and planet first before profits,” said Oxfam.
The DMRE, which backs Shell’s oil and gas exploration effort, said it notes the judgment.
“The department is studying the judgment and will respond appropriately once it has taken advice from its legal representatives,” said a terse statement from the DMRE.
Oxfam South Africa said it was encouraged by the efforts of environmental rights activists and communities and remains committed to supporting interventions that seek to advocate and promote FPIC [Free, Prior and Informed Consent – a specific right that pertains to indigenous peoples].
“The judgment sets a precedent that multinationals should not insult the intelligence of ordinary communities. It recognised the importance of public participation, which these multinationals don’t consider as an important factor,” said Owen Ndidi from our partner organisation, the Eastern Cape Environmental Network.
“Fishing and coastal communities mustn’t be taken for granted in terms of decision making on issues that will affect them and the environment negatively.
“It’s a big win, but we know for a fact they will try to manoeuvre to get what they want, that is why we are having briefings with a number of civil society organisations to develop a strategy on a way forward,”
Nonhle Mbuthuma from our partner organisation, the Amadiba Crisis Committee said: “This is not the end of the fight, there is still a long way to go as Shell might appeal.
“Even if they don’t appeal, the fight continues and we are going to continue ensuring that these processes are done in such a way that protects human rights and the planet.
“The economic recession we are facing will push more private companies to come and destroy the planet and displace many communities.”
In upholding the ban, the court found:
- The exploration right was granted unlawfully since there was no consultation with affected communities.
- Allowing the exploration meant the Department of Mineral Resources and Energy failed to consider the potential harm to the fishers’ livelihoods, and the impact on their cultural and spiritual rights.
- The companies’ consultation with kings, monarchs and other traditional leaders was not enough and “finds no space in a constitutional democracy”.
- The contribution of oil and gas exploration to climate change was not considered.