“The court has a duty to step in and protect those who are offended and the environment” judge rules in the Shell seismic survey case
On 1 September 2022, the High Court in Makhanda, South Africa, set aside the exploration right that had been granted to Shell and Impact Africa to conduct seismic surveys for oil and gas exploration along the ‘Wild Coast’. This case, brought by community applicants who asserted that their right to be consulted had been violated, and that in the granting of the exploration right to these companies, the government had not adequately considered the impacts on food security, cultural heritage and climate change, resulted in a powerful judgement in favour of human rights and environmental justice. This case, along with wider resistance to seismic surveys and oil and gas in South Africa, has been well summarised elsewhere – in this article by Priyanka Naidoo from the Legal Resources Centre (now a formal partner of the One Ocean Hub). In addition, Hub researcher Jackie Sunde’s earlier blog post illustrates the earlier phases of this legal challenge.
Some of the key excerpts worth highlighting from the High Court judgement in the Shell Wild Coast case are the following:
“… 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”
“…meaningful consultation consists not in the mere ticking of a checklist, but in engaging in a genuine, bona fide substantive two-way process aimed at achieving, as far as possible, consensus”
The Precautionary Principle
“Because of the apparent dispute between the experts as to the adequacy of the mitigation measures minimising the known effects of seismic surveys [on marine and bird life], it would have been incumbent on the decision maker to invoke the precautionary principle’… the approach adopted in our environmental legislation is one of risk aversion and caution.”
Coastal Communities as Ocean Custodians, and the Sacred Nature of this Relationship
“The applicant communities contend that they bear duties and obligations relating to the sea and other common resources like our land and forests; it is incumbent on them to protect natural resources, including the ocean, for present and future generations; the ocean is the sacred site where their ancestors live and so have a duty to ensure that their ancestors are not unnecessarily disturbed and they are content. If there is a potential for disturbance, they contend, they. must be given the opportunity to follow their customary practices for dealing with the anticipated disturbance.”
The judgement cites Judge Bloem’s judgement, in Part A of the case, related to Respect for Cultural and Spiritual Relationships with the Ocean
“I accept that the customary practices and spiritual relationship that the applicant communities have with the sea may be foreign to some and therefore difficult to comprehend. How ancestors can reside in the sea and how they can be disturbed may be asked. It is not the duty of this court to seek answers to those questions. We must accept that those practices and beliefs exist… In terms of the Constitution, those practices and beliefs must be respected and where conduct offends those practices and beliefs and impacts negatively on the environment, the court has a duty to step in and protect those who are offended and the environment.”
Lack of consideration of potential harm to culture, food security and climate change
“There is no evidence that when the impugned decisions were taken the possibility of harm was considered; nor that the proposed remedial measures addressed the potential harm to the applicants cultural beliefs or food security”
“Had the decision-maker had the benefit of considering a comprehensive assessment of the need and desirability of exploring for new oil and gas reserves for climate change and the right to food perspective, the decision-maker may very well have concluded that the proposed exploration is neither needed nor desirable
The successful and significant judgement in this case, finding in favour of communities and the environment, is the result of the leadership, courage and knowledge of coastal communities, as well as the lawyers who argued their case in court. The large public mobilisation around this case is the result of collective, strategic responses to this and other environmental justice issues over many years.
One Ocean Hub researchers participated as a small part of a much larger networked response. Some of the ways we as OOH researchers contributed to this case were:
- Helping to write affidavits with community applicants
- Giving expert evidence related to the potential impacts of seismic surveys on species that are central to SSF livelihoods
- Drawing on the public testimonials and other expressions of cultural-spiritual ocean relationships elicited through the arts-based research to illustrate, in affidavits, the cultural significance of the deep ocean and peoples’ concerns about the potential harm of seismic surveys and oil and gas exploration and extraction on this cultural-spiritual realm;
- Ensuring that community applicants and their supporters could attend court in person (along with our NGO partners);
- Organising and facilitating dialogues and debriefing sessions (with civil society partners) before and after the court case and judgement, to facilitate learning and reflection upon the strategy, significance and impact of these legal processes.