- Wild Coast communities, Sustaining the Wild Coast, All Rise Attorneys, Natural Justice and Greenpeace Africa have, last week, filed petitions in the Constitutional Court to appeal against the order of the Supreme Court of Appeal (SCA) in the legal battle over Shell’s exploration rights which allows them to conduct seismic testing on the Wild Coast of South Africa.
In the SCA, a successful High Court judgement was upheld, but the order to set aside the exploration right granted to Shell was suspended, pending a decision by the Department of Mineral Resources and Energy on Impact Africa and Shell’s third application to renew the right.
The Makhanda High Court found that the right was granted unlawfully because of the failure to notify and consult affected communities, and that relevant considerations, such as the communities’ right to food and livelihoods from the ocean and their spiritual and cultural rights, as well as the climate change impacts, were ignored. In addition, the Court found that the Minister failed to consider and comply with the requirements of the Integrated Coastal Management Act. It set aside the exploration right entirely.
In their papers filed in the Constitutional Court, the Wild Coast communities and environmental justice organisations argue that the SCA’s order that allows the Minister to adjudicate Shell’s latest renewal application of the disputed exploration right, is not “just and equitable”, as is required by the Constitution. The communities say that the order is an attempt to give Shell the chance to make up for their failed consultation process when it applied for the right over a decade ago. They argue that the law does not allow such a late redemption.
The environmental justice organisations further argue that the SCA order is constitutionally impermissible and legally incompetent, and should be set aside by the Constitutional Court.
The Wild Coast communities and environmental justice organisations argue that the SCA’s order does not effectively protect the rights of the communities and other parties to fair administrative action, nor the communities’ constitutionally protected rights to their livelihoods and their cultural and spiritual rights. In addition, the order fails to provide any clarity on what Shell and the Minister must do to remedy the defects of the earlier processes, which means that, inevitably, more litigation will follow. To be just and equitable, an order must at least be clear.
The SCA found that a complete setting aside of the exploration right was “too harsh” and has hence provided Shell with this new opportunity to have the right granted through its renewal process. However, the organisations argue that there is no need for the SCA to “ameliorate the harshness” of an order setting aside the impugned decisions.
The communities and organisations also noted an appeal against the failure of the SCA to deal with their cross-appeal which concerned the question as to whether Shell was required to obtain an environmental authorisation under the National Environmental Management Act before it could conduct its exploration activities.
The SCA’s order appears intended to grant Shell an opportunity to conduct exploration activities – without the question of the need for an environmental authorisation having been answered.
This case raises important constitutional questions about the appropriateness of the “just and equitable relief” granted by the SCA in the exercise of its remedial powers in terms of section 172(1)(b) of the Constitution. This has implications for the broader public, as it may determine how courts provide remedies in court cases when a decision has been declared unlawful.
Source: Natural Justice
