A high court has set aside a decision by Minister of Mineral Resources and Energy Gwede Mantashe to grant Shell an exploration right, which would have allowed it to conduct a seismic survey off the Wild Coast.

The ruling was handed down in the Makhanda High Court on Thursday, following a two-day hearing in May.

Wild Coast communities and nonprofit organisations asked the court to block the proposed seismic survey, which they believe would cause irreparable harm to the environment, as well as to livelihoods and cultural and spiritual practices of communities. They also raised concerns about oil and gas exploration contributing to climate change, which they believe the minister did not consider.

The applicants wanted the court to set aside an exploration right granted to Impact Africa in 2014, which was later transferred to Shell. They also wanted the court to set aside the subsequent renewals of the right in 2017 and 2021.

The high court ruled in their favour on both counts.

The court found issues with the efforts taken to consult with communities, which it believes fell short. It also noted areas which the minister did not properly consider.

"It is demonstrably clear that the decisions were not preceded by a fair procedure; the decision-maker failed to take relevant considerations into account and to comply with the relevant legal prescripts," the judgment read.

The ruling unpacks several procedural issues. Firstly, not all of the affected communities were included in a stakeholder database, to allow them to receive relevant background information. Advertisements about the proposed exploration were shared in newspapers, but only in English and Afrikaans languages. The court noted that these languages were "barely understood" by communities who are Xhosa-speaking.

"Had the consultants and those who mandated them been serious about reaching out to the applicant communities, they would have seen their way clear to utilising a newspaper that is in a language spoken by the majority of people in the area concerned," the judgment read.

The court also found that no effort was made to deal directly with members of communities.

"… It is evident that the traditional leaders concerned urged the consultants to deal directly with members of the affected communities, to no avail. In any event, the top-down approach whereby kings or monarchs were consulted on the basis that they spoke for all their subjects is a thing of the past which finds no space in a constitutional democracy," the judgment read.

The project information had been made available online. But the court noted that a "great number" of the population, especially those in rural communities lack access to computers and similar devices. "The applicant communities are part of those who are still disadvantaged," it said.

Therefore, these interested and affected parties would not be able to access information distributed via email or websites.

ECONOMIC DEVELOPMENT OBJECTIVES
The Mineral and Petroleum Resources Development Act (MPRDA) promotes the expansion of opportunities in the industry for historically disadvantaged persons. This includes job creation and economic participation. While Shell suggests the seismic survey would create jobs and increase government revenues, no detail is given to substantiate the claims, the court found. There is no explanation of how jobs will be created and the economy will be stimulated and how the seismic survey will improve socio-economic circumstances, the judgment indicated.

The applicants also sought a declarator that an approved Environmental Management Programme (EMPr) under the MPRDA is not the equivalent of an environmental authorisation under the National Environmental Management Act (NEMA). Shell had relied on the EMPr as environmental authorisation for the proposed survey.

According to the judgment, setting aside the decision to grant the exploration right and its subsequent renewals renders it "unnecessary" for the court to also consider the declarator.

"There is no longer any dispute between the parties in need of resolution by way of a declaratory order," the judgment read.

Shell's spokesperson Pam Ntaka said the group respected the court's decision and would be reviewing the judgment to determine the next steps regarding the Wild Coast block.

"We remain committed to South Africa and our role in the just energy transition," said Ntaka.

Fin24 has reached out to the Department of Mineral Resources and Energy for comment.