Community voices 'ignored' in Shell's exploration rights extension process

Sustaining the Wild Coast (SWC) NPC claims Shell and Impact Africa will be allowed to continuously ignore community voices in their exploration rights extension process and the current litigation before the Constitutional Court.

On Tuesday, the Constitutional Court heard arguments on whether the Supreme Court of Appeal’s (SCA) order suspending the setting aside of an exploration right was just and equitable.

Judgment was reserved in the matter. 

According to the marine conservation body SWC and other applicants, they were denied their right to be heard in the consultation process. 

The environmental group argued that Shell cannot simply dismiss local interests - which includes a spiritual and cultural connection to the ocean - while pursuing its seismic survey application to explore for gas and oil reserves along the Wild Coast.

They further submitted that the order by the SCA was “incompetent and vague”.

At the SCA, the court suspended a high court order which set aside an exploration right and its subsequent renewals pending the outcome of a third application for the renewal of that exploration right.

The applicants have opposed the survey which would blast soundwaves toward the seabed and analyse the echoes and their failed to do a comprehensive consultation process and did not take into account the harm to marine and bird life as well as communities. 

Counsel for the applicants submitted on Tuesday that Shell and Impact “can’t ride roughshod over their (applicants) interests” and said Shell wants to maintain the spoils of an unlawful process in which the applicants were never given a chance to be heard.

The applicants argue that the remedial action through the suspension still did not set out an explicit process which gives directives to Shell and Impact to do a comprehensive consultation process which includes engagements with communities of Amaphonda and AmaXhosa communities.  

On 29 April 2014, the Department of Mineral Resources and Energy (DMRE) granted Impact an exploration right in terms of the Minerals and Petroleum Resources Development Act to undertake exploration activities. Since then, two renewals were granted and Shell acquired a 50% stake in that right.

In October 2021, Shell announced its intentions to begin a 3D seismic survey which is a method of searching for oil and gas beneath the seabed by blasting soundwaves and analysing its echoes. 

Shell submitted that an appropriate remedy in this case, which according to them balances the interests of all of the parties, would be to allow defects in the initial process followed in the application for the exploration right to be corrected in a fresh consultation process as part of the pending application for the renewal of the right.

Meanwhile, the minister for Minister for Mineral Resources and Energy, as a respondent alongside Shell and Impact, submitted that the applicants are placing the cart before the horse in the absence of a failure of the consultative process which can only be tested when that juncture is reached. 

“The (SCA) order specifically addresses what is to take place leading up to consideration of the third renewal application. Effective public participation is to take place. This is thoroughly addressed by the SCA in its judgment. 

“The minister will be guided by those findings and remarks. One hopes that the historical inadequacies in the consultative process will be allayed, but it remains to be seen.”

A fisherman from Port St Johns along the Wild Coast, Ntsindiso Nongcavu, an applicant in the matter said when he heard about Shell’s plans, it felt like his “world was ending” as poor communities especially, are affected by the outcomes of exploration for gas and oil reserves. 

Nongcavu said he joined the matter alongside Sustaining the Wild Coast NPC and five other applicants, in a bid to halt the exploration rights of Shell which threatens their livelihoods. He said they are against the seismic surveys because the Wild Coast “is still alive and our understanding is that the ocean is alive (but) now we’re having these issues of climate change because of these activities in the ocean”.

“The ocean is my livelihood. So if they are going to be destroying that, then how will I ever be able to fish again? If I do not fish, my family does not eat. 

“I know what happens where mining is done inland. That’s why we’re saying we don’t want this project here. Although at first it made me fearful, because I know the greed of politicians and companies. When I heard other fishermen from other communities also doing this, that motivated me and I could mobilise my community,” said Nongcavu. 

chevn.booysen@inl.co.za