Wild Coast fishing communities take battle against Shell to ConCourt

Fishing communities from the Wild Coast have taken their fight against Shell’s oil and gas exploration to South Africa’s highest court.

On Tuesday, 16 September, alongside environmental organisations, they argued before the Constitutional Court that a Supreme Court of Appeal (SCA) ruling allowing Shell to seek a renewal of its exploration rights was incorrect and should not stand.

At the heart of the case is whether Shell’s exploration rights, originally granted without meaningful engagement with local fishing and coastal communities, can be renewed using consultation mechanisms outside statutory requirements — or whether constitutional protections for communities’ livelihoods, cultural practices and environmental rights must prevail.

A fight a decade in the making

The legal battle came into sharp focus in 2021, when seismic survey ships related to Shell’s offshore plans were spotted off the Wild Coast, alarming coastal communities and civil society groups.

The surveys were based on exploration rights granted in 2014 by the Department of Mineral Resources and Energy (now the Department of Mineral and Petroleum Resources — DMPR) to Impact Africa, with Shell later becoming a co-holder.

Communities were unaware of the project until December 2021, when Shell prepared to begin seismic surveys — powerful sound blasts into the ocean floor to map oil and gas reserves. Small-scale fishers, dependent on the ocean for food and livelihoods, were alarmed.

Small-scale fishers and the non-profits Sustaining the Wild Coast NPC and All Rise — Attorneys for Climate and the Environment, represented by the Legal Resources Centre and Richard Spoor Attorneys, secured an urgent interdict from the Eastern Cape High Court in Makhanda to halt the surveys. Natural Justice and Greenpeace Africa later joined the case.

Then, in 2022, the Makhanda High Court deemed the exploration rights unlawful and halted the seismic exploration.

The court ruled in favour of the communities and environmental organisations on several key issues:

• Public participation: Consultation must be meaningful, not a tick-box exercise.
• Environmental harms: Lack of evidence does not equal no impact; the precautionary principle is required.
• Cultural rights: Shell, Impact Africa and the DMPR failed to consider potential harm to religious, ancestral, and cultural practices.
• Climate change and the right to food: Had these factors been considered, the minister may have concluded the project was “neither needed nor desirable”.

Read more: Seismic judgment — Eastern Cape high court sinks Shell’s Wild Coast exploration rights

Shell, Impact Africa and the minister appealed, while Shell and Impact Africa sought to renew the exploration rights for a third and final time.

In May last year, the SCA upheld the unlawful nature of the original rights but controversially allowed Shell to renew them.

Read more: Shell’s Wild Coast exploration appeal dismissed, but rights renewal still feasible

Communities argued this undermined their constitutional protections, asserting that rights granted without proper consultation should not be revived.

This week, the dispute reached the Constitutional Court. On Tuesday, lawyers for the communities and environmental organisations faced counsel for Shell, Impact Africa and the DMPR. Chief Justice Mandisa Maya and her fellow justices questioned both sides before reserving judgment.

Wild Coast communities’ argument 

Wild Coast communities and environmental organisations contended that the SCA’s decision allowing Shell to renew its exploration rights off the Wild Coast was incorrect and should be overturned.

The Legal Resources Centre (LRC) argued that the SCA’s order allowed Shell to renew an unlawfully granted permit, undermining the rule of law.

“Shell must do the exploration application afresh and do it right,” said Wilmien Wicomb from the LRC.

“The SCA tried to create a new process through its order to save Shell's permit, but in doing so, it undermined its own findings and the findings of the high court.

“Impact and Shell knew the communities were along the 250km coastline but chose not to consult them. They cannot then complain about having spent money — it was their own choice.”

She said the case was highly technical, centred on what remedies courts may grant.

Wicomb added that while courts had discretion to prevent rigid or unjust outcomes, they could not override the need to uphold constitutional rights.

“In this case, our clients successfully had the exploration permit of Shell set aside because it was granted unlawfully. The SCA proposed allowing Shell to extend the right, but our clients say the minister must consider a new application afresh,” she said.

Melissa Groenink-Groves, a lawyer at Natural Justice, said: “The SCA order violates the Constitution and does not give effect to the rights of the communities and other parties to fair administrative action, nor the communities’ livelihoods and their cultural and spiritual rights, protected under our Constitution.

“The order also fails to provide any clarity on what Shell and the minister must do to remedy the defects of the earlier processes. To be just and equitable, an order must be clear.”

‘Just and equitable’

Under South African law, the principle of “just and equitable” relief, set out in section 172 of the Constitution, allows a court to craft remedies that are fair, balanced and reasonable when declaring a law or government action invalid.

This means that when a court declares a law or government action invalid, it must also decide on a remedy that is “just and equitable.”

“This discretion is not used lightly but is intended to prevent unfair outcomes,” said Wicomb. “The high court correctly set aside Shell’s exploration permit because it was granted unlawfully. The SCA’s approach — allowing Shell to extend the right — effectively pretends the unlawful grant never happened. Our clients argue the minister must consider a new application afresh.”

Wild Coast communities say the SCA’s order is not just and equitable because it allows Shell to correct mistakes from a decade ago without properly consulting the people whose livelihoods and cultural practices are affected. The Eastern Cape High Court in Makhanda had already found that consultation with kings, monarchs and traditional leaders alone was insufficient.

Section 79 of the Mineral and Petroleum Resources Development Act requires applicants for exploration rights to consult affected parties. However, Section 81, which governs renewals of exploration rights, does not require consultation, meaning the minister can approve a renewal without engaging affected communities.

“For a renewal, the minister only checks that the rights-holder has complied with the conditions of the existing right. It is nowhere near the same as the requirements for allocating a new right,” explained Wicomb.

“What cannot happen is for consultation to be merely a tick-box exercise after a right has already been granted. The application itself and the Environmental Management Programme developed must be informed by what affected communities say. Consulting after the fact is meaningless.”

Advocate Nick Ferreira, representing Natural Justice and Greenpeace Africa, argued that the SCA should have dismissed the appeal and upheld the high court ruling, saying the court cannot become “a platform for unpleaded submissions and for turning back the hands of time”.

Advocate Tembeka Ngcukaitobi SC, representing Sustaining the Wild Coast and affected communities, emphasised the constitutional importance of protecting heritage and ancestral lands, saying that dignity required giving communities a platform to express their concerns.

Shell, Impact Africa, and DMPR’s argument

Shell, Impact Africa, and the DMPR argued that the SCA’s suspension order was legally sound and “just and equitable”.

They said that rather than completely invalidating the exploration rights — which the high court had found unlawful — the matter should be sent back for reconsideration, a process known as “remittal”. This would allow any defects in the original consultation process to be addressed as part of Shell’s application for the third and final renewal of the exploration rights.

The respondents argued that Shell had invested more than R1-billion in the project and that invalidating the rights outright would erase both this investment and future exploration opportunities. They described themselves as “innocent third parties”, noting that Shell had not participated in the original process and only later acquired the exploration rights from Impact Africa. They said a moratorium on new exploration rights could prevent Shell from applying again.

They argued they had acted in good faith, following existing regulations, and had only become aware of the communities’ specific interests later. They said the renewal process could include meaningful consultation, updated scientific evidence and adjustments to the Environmental Management Programme to address communities’ cultural, spiritual and livelihood concerns.

Shell and Impact also stressed the potential economic and social benefits of the project, including job creation, regional development and reducing South Africa’s reliance on imported fossil fuels. They said no seismic surveys would take place until the renewal process and consultation were complete.

Natural Justice’s Groenink-Groves noted that Shell’s claim of a R1-billion investment was presented without evidence, and it was unclear how much Shell had paid Impact Africa for its share of the exploration rights.

Finally, the respondents argued that the high court had not properly exercised its discretion on “just and equitable” relief. They said the SCA’s order offered a balanced solution, consistent with previous opportunities for stakeholders to make representations.

Nothing about us, without us

Outside the Constitutional Court, Wild Coast fishing communities and their supporters demonstrated.

Pilisa Ncumeza, a fisher from Ntubeni village in Willowvale, said fishing was vital for food and income, and that her community’s coastal way of life was intertwined with cultural traditions.

Read more: Lives on a line — the fishers fighting Shell’s Wild Coast seismic survey ambitions (Part 1)

Zakhele Nkamisa, a fisher from Nadakeni village and a member of Coastal Links, relies on shore-based angling to support his family. He said he was disappointed that the SCA had allowed Shell and other companies to reapply for exploration rights, arguing that the decision favoured the companies over local communities.

“It is important for us to be present at the Constitutional Court to show how significant this case is and to ensure our voices are heard,” he said.

Ntsindiso Nongcevu from Sicambeni village, Coastal Links’ Eastern Cape chairperson, said communities had repeatedly tried to engage with the government, only to be dismissed as “anti-developers”. He called for direct engagement between the minister and affected fishing communities, rather than consultation solely with chiefs and local officials.

“In South Africa, we have only 13% of the land. Now they want to take the little [marine resources] we have left,” he said.

“Without it, we lose dignity,  our identity as a people. Our culture needs to be respected, without compromise.”

Walter Steenkamp, a member of Coastal Links in the Northern Cape, summed up the communities’ sentiment: “Nothing about us, without us.”

What impact do seismic surveys have on the ocean? 

As previously reported by Daily Maverick’s Ed Stoddard, the full impact of seismic surveys on marine life is uncertain, and more rigorous, transparent research is needed to guide policy decisions.

Read more: Loaded for Bear — the scientific jury remains out on the effects of seismic surveys

“One of the issues of ‘absence of evidence of harm’ is that the research has not been done on baselines and impacts,” said Groenink-Groves. “It’s not in the interests of seismic survey companies to do this research.”

However, expert reports submitted to the Eastern Cape High Court in 2021 by marine scientists, including Drs Jean Harris, Jennifer Olbers, Kendyl Wright (from WildOceans), and Drs Simon Elwen and Tess Gridley (from Sea Search Africa), showed that seismic surveys pose significant risks to marine ecosystems.

Evidence indicated that whales, dolphins, and fish could suffer hearing loss, stress and disorientation; zooplankton — the base of the food chain — could be killed within kilometres of survey sites; and endangered species such as Bryde’s whales, humpback dolphins, turtles and African penguins faced disruptions to feeding and reproduction.

It’s of note that the court found that Shell’s proposed mitigation measures to deal with the survey’s impacts were “inadequate” and applied the precautionary principle, noting that scientific uncertainty cannot justify actions that may cause irreparable harm.

Fishers and community leaders also gave affidavits describing how previous surveys had devastated tuna catches, threatening livelihoods, and underscored the cultural and spiritual importance of the sea as a place of ancestors and healing.

“For us, the point is that without having considered the local communities’ rights, including that their livelihoods depend largely on the ocean, it is not possible to assess the impact on them,” said the LRC’s Wicomb.

“There were a lot of opinions raised by experts during the court proceedings that say seismic surveys, which entail shooting airguns into the ocean floor at regular intervals for months, have a serious impact on ocean life.

“That is not disputed; rather, the minister, Shell and Impact say they will mitigate those impacts. We say that without considering the impacts on our clients, we cannot know whether that is correct.

“The case has already set a precedent showing that cultural rights of affected communities, and climate change considerations, must be considered when awarding exploration rights.”

Wicomb said the case was unique, with the court grappling over what would be just and equitable. She noted that Shell, Impact and the minister insisted on only running a renewal process, avoiding proper consultation, despite acknowledging that the original process was unlawful.

Ngcukaitobi said the case was really about the fact that Shell would do anything “to avoid speaking to my clients”.

“He also pointed out that Impact now argues that it did not know that these communities existed and had to be consulted and therefore did not ignore them on purpose,” noted Wicomb.

“That, advocate Ngcukaitobi said, harks back to colonial era understandings of Africa being terra nullius, ‘empty land’, with the people being invisible.” DM