The second day of the three-day trial between Shell, Impact Africa and environmental activists began at the Gqeberha High Court on Tuesday following arguments by Barrister Tembeka Ngcukaitobi SC and Barrister Nick Ferreira on Monday.
The judges adjourned the case, reserving judgment both granting the joinder motion brought by Natural Justice and Greenpeace Africa (represented by environmental law firm Cullinan & Associates) and declaring that Shell needed environmental clearance under the National Environmental Management Act (Nema), and whether their exploration rights had been legally granted by the Department of Mineral Resources and Energy (DMRE).
On Monday, Presiding Judge Selby Mbenenge, Associate Presiding Judge Zamani Nhlangulela and Judge Thandi Norman heard the merits of the joinder application.
On Tuesday, Jeremy Gauntlett SC, representing Impact Africa, argued against the joinder request sought by Natural Justice and Greenpeace Africa, saying the two organizations were adding nothing new to the case and had decided to attach themselves as one ” cuckoo clock in a nest”.
During the second day, Gauntlett argued that the claimants were using legal “knobkerrie” via a ban to undermine Minister Gwede Mantashe’s authority to decide the issue, blaming flawed legislation rather than the decision maker.
Gauntlett also argued that the precautionary principle did not apply in this case, but that the relevant question was whether the harm was serious and irreversible.
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Protesters, led by affected coastal communities, had gathered outside the Gqeberha High Court since Monday to show their support at the start of the three-day legal challenge against Shell and Impact Africa’s seismic surveys off the wild coast. , and the 2014 DMRE decision. to grant Shell exploration off the coast of South Africa.
Part B of the case against Shell and the department – which galvanized widespread protest action across South Africa in 2021 – began on Monday after Shell was temporarily banned from undertaking seismic blasting in exploring for oil and gas along the Wild Coast in December of this year, until Part B of the initial application had been finalized.
This time the case goes beyond the initial ban to review the granting of Shell’s exploration right. The initial applicants, Sustaining the Wild Coast and Affected Coastal Communities, were joined by Natural Justice and Greenpeace Africa.
Representing DMRE, Attorney Albert Beyleveld SC argued that the notice published in a newspaper was adequate, in accordance with the regulations of the Mineral and Petroleum Resources Development Act (MPRDA).
“No consultation process can reach everyone, so the fact that the consultation process in question did not reach the affected communities should not render the consultation process inadequate as long as the process meets the basic requirements set out in regulations,” he said.
Beyleveld said the petitioners should have instead directly challenged the settlements themselves as inadequate.
“Petitioners had to first pursue domestic remedies under the MPRDA before filing a court petition,” he said.
On behalf of Shell, lawyer Adrian Friedman said that an approved environmental management program (EMPr) under the old MPRDA is not just the equivalent of an approved EMPr under the One Environmental System, but that this EMPr is also the equivalent of an Environmental Clearance (EA) under the Single Environmental System and as such Shell should not have been required to obtain an EA to commence seismic testing .
“The three contested decisions suffer from an insufficient exhaustion of internal remedies. Plaintiffs made a virtue of their own delay and came to court to make opportunistic arguments instead of turning to DMRE for redress,” he said.
Friedman said the only fair approach to evaluating consultation processes was to apply the regulations as written, without engaging in another subjective inquiry into the adequacy of the consultation process that took place.
He went on to dispute that environmental damage would result from carrying out seismic testing.
Responding to the arguments, Ngcukaitobi pointed to the differences between an EA under Nema and an EMPr under the MPRDA and argued that a simple reading of laws and regulations undermined respondents’ “circular and untenable” argument that an EMPr under the MPRDA is the equivalent of an EA under Nema.
He underlined: “The seriousness of the minister [Gwede] Mantashe’s biased public comments and the fact that an entity associated with Shell donated large sums of money to the ANC at the end of 2021. Once it is clear that there is a reasonable apprehension of bias, and this is where we are, no one can reasonably say that there are alternative measures available,” he said.
Ngcukaitobi rebutted Shell’s assertion that a box-ticking exercise of these minimum requirements expressly set out in the regulations constituted adequate consultation by referring to the Constitutional Court’s stated preference for a standard of procedural fairness when assessment of the adequacy of consultation under the MPRDA.
Ngcukaitobi said that contrary to the suggestion they had heard time and time again, experts told the court that damage from offshore exploration was unavoidable.
“After reminding the Court that the impugned decisions ignore a whole range of information on human and environmental rights abuses that should have been taken into account, expert testimony [has been led] on the high likelihood of serious harm and the inadequacy of the proposed mitigation measures – conclusions that even the respondents’ experts agree with,” he said.
He said that if there had ever been a case meriting the precautionary principle, this was it.
Ferreira told the court that an environmental assessment is a legal requirement, independent of an exploration right and that an environmental assessment was necessary to undertake any activity listed under Nema.
“As such, the validity of the exploration right is separate from the requirement for an EA, and Shell needed an EA before conducting a seismic survey, which is a listed activity under Nema. although the minister has the power to deem an EMPr under the MPRDA to be an EA under Nema, the minister did not actually exercise that power in this case, instead as described by attorney Ferreira , Shell is trying to perform a dummy ventriloquist trick for the Minister to say that the Minister considered their EMPr as an EA under Nema, but the Minister did not in fact make such a decision in this case,” he said. said.
Ferreira reminded the court that the intervening plaintiffs requested copies of the decisions and corresponding reasons from the DMRE and the Department of Forestry, Fisheries and the Environment, but received no response, preventing them from exercising internal appeals to the departments.
Wilmien Wicomb, a lawyer with the Legal Resources Centre, said Ngcukaitobi told the court that Shell and Impact had marginalized the very people who live by and from the ocean they want to blast, by the way they conducted their participation.
“He is now asking the court to further the marginalization by referring them to Minister Mantashe to make an internal appeal before coming back to court,” Wicomb said. DM/OBP