Authored By: Kimberley Prisca Mujumi
University of Witwatersrand
Introduction
The Court’s judgement in Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy [2022] 1 All SA 796 (ECG) forms part of a series of judgements in which courts have established the importance of seriously considering the rights of communities when companies intend to venture into business that may have the implication of causing serious financial loss to the communities. In this note I argue that South African Environmental law has started moving in the right direction to make sure that the rights of communities are considered, and environmental law is not designed to protect unsustainable. In this case, commercial interests at the expense of the people that reside in communities in which natural resources are founded.
Facts of the case
In this case, Sustaining the Wild Coast NPC together with other Applicants who had a material interest in the matter which represented the interests of the public brought forward a two-part application to firstly interdict the third and fourth applicants from continuing with the seismic survey of the Wild Coast in the Eastern Cape Province of South Africa until after they had undergone proper consultation of the communities. In the first part of the application (which is the subject matter of the recent decision which is under this note’s scrutiny), the Applicants sought an interim injunction against Shell that would prevent it from proceeding with the seismic survey. The injunction would remain in place until the second part of the application is finalised. In the second part, the Applicants requested the court to order a permanent injunction that would prohibit Shell from proceeding with the seismic survey until it obtains the necessary environmental authorisations under the National Environmental Management Act, 1998 (NEMA).
The Applicants’ identified three categories of harm. First, the impact which the seismic survey activities would have on the role which the ocean played in the communities’ cultural life as well as their traditional practices. Second, the impact on the Wild Coast’s marine life, including vulnerable species such as the humpback dolphin, turtles, and zooplankton. Finally, that impact which the proposed exploration activities would have the livelihoods of the small-scale fishermen who reside in the Wild Coast.
Decision and Ratio Decidendi
To obtain the interim injunction, the Court required the Applicants to prove that there was a reasonable possibility that their rights would be imminently and irreparably harmed unless the injunction was granted. The nature and extent of the harm to the rights was very important in the reasoning as it forms part of the basis in which the case was raised. The second most important basis of the case is the lack of proper consultation. The second requirement the court asked the applicants to show was that they did not have access to any alternative relief and that the balance of convenience favoured the grant of the injunction. As indicated in the introduction, the Applicants’ case based on their right to an environment which is not harmful to their health and well-being, to participate in and enjoy the cultural life of their choice, as well as to just administrative action. The right to just administrative action (which include procedural fairness) was particularly important in this matter because the Applicants’ case rested on the fact that they were not consulted before the exploration right (under which the seismic activities would be conducted) was granted. This, in their view, amounted to a fatal flaw in the exploration right application process.
In its decision, the Court having considered their submissions agreed with the Applicants and held that “meaningful consultation entails providing communities with the necessary information on the proposed activities and affording them an opportunity to make informed representations “. In support of its decision, the court indicated that the consultation process was “inadequate and substantially flawed“. The Court provided several reasons for the decision that it made. The first of these is that the Court noted that the consultation notices were only published in English and Afrikaans newspapers and not in the Zulu and `Xhosa languages thus depriving the member of the communities which spoke these languages. It also noted that these members of the communities were either unaware of the consultation process and or unable to read and fully understand the notices. The Court also considered the fact that the briefing sessions with interested and affected parties were only held in Port Elizabeth, East London, and Port St Johns and all these venues were far away from the communities thus excluding the interested communities from these meetings. The respondents had only made consultations with the Kings of communities on the assumption that they spoke for their people when this was not the case because the communities had a policy against top-down approach in decision making. It was apparent to the Court that the respondents did not follow through with the consultation processes which it proposed in the environmental management programme which accompanied the exploration right application and they failed to show what the stakeholder analysis on which it relied during the exploration right application process entailed as well as why the previous studies which it used were adequate.
The Court concluded that Shell’s Exploration Right was granted based on an insufficient and gravely flawed public consultation process on the foundation of its justification. In light of this conclusion, the Court declared the exploration license to be illegal and void as well. In regardto the first and second sets of injury, Shell did not offer any expert refutation of the claims made by the applicants’ experts. The court concluded that the claims made by the applicnts were uncontested as a result. The court further determined that the accusations about the irreparable harm to marine life adequately proved how Shell’s actions will adversely affect coastal fishermen’s ability to earn a living. The Court determined that the Applicants were favored by the balance of convenience for two reasons. First, even if Shell would incur financial losses because of the injunction, those losses cannot excuse the violation of constitutional rights. “Where constitutional rights are in stake, the balance of convenience favours the safeguarding of such rights,” the court stated. Second, Shell was unable to utilize its failure to adequately consult the Applicants as an argument against granting the temporary order.
One of the court’s main concerns was centred around what it termed the respondents’ “inadequate and substantially flawed” consultation process undertaken with impacted local communities. In addition, considering the evidence which the Applicants’ experts provided, there was a real chance that the Wild Coast’s marine life would be harmed. The precautionary principle may therefore be justifiably invoked. This approach is enshrined in section 2(4)(a)(vii) of NEMA which provides that the principle of sustainable development requires that “a risk-adverse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions”.
Critical Analysis and Further discussion
The Sustaining the Wild Coast NPC judgment makes it clear that petroleum companies are expected to form a deeper understanding from the communities themselves as to how the consultation process may best be arranged to accommodate their customary law and practice, prior to any formal talks being had. This is a movement that Tumai Murombo in his article, advocates for as he notes that there is a need for the judiciary to infuse sustainable development in which resources are not just plundered. This is because reasonable consultations make room for proper procedures to be followed which are directly and indirectly sustainable. The deeper understanding of communities ensures that there is a built-in protection in which members are afforded the opportunity to take a meaningful part in the consultative process. This shows respect of cultural practises and as such it will have a significant and long-term impact on the surrounding environment. This case has made a positive impact in which consultation with affected communities ceases to be regarded as simply a task to be completed before the real work may begin, but must form the core of every decision taken during those processes. The Court’s ruling on the formulation of consultative process greatly improves the protection of affected communities’ consultation rights, indicative of the growing body of jurisprudence taking the right to culture which is respected and provided for by the constitution even more seriously.
As earlier mentioned, the Court advances a movement in law which has been initiated by previous Courts in a bid to alleviate the conflict between developing the nation and respecting cultures and practises of people that dwell in communities that hold these resources, In the case of, Maqoma v Sebe NO 1987 (1) SA 483 (Ck), it was established that meaningful consultation meant providing communities with the necessary information on the proposed activities and affording them an opportunity to make informed representations thereon. This issue is also of international importance and is also considered in other countries as this is explored and the Court makes reference to international precedent.
It can be argued that interpreting this decision as an attack on the private sector, would be a misrepresentation of the reasoning of the Court in making this decision. It should rather be viewed as guidance on the approach which extractive companies ought to follow when intending to undertake any exploration and production activities. According to the decision, it is critical for companies to consult meaningfully with communities as part of the licence application process. In doing so, companies should apprise communities of the nature and extent of their proposed activities in a form which is easy for the communities understand. In as much as consultation does not translate to negotiation, companies ought to exhibit serious consideration of the response which the communities provided during the consultation process but rathe companies must provide an adequate response to the concerns raised by the community. This may include adapting the proposed activities in response to these concerns. History is littered with examples of operations which fail when extractive companies lose their social or societal licence to operate. Owing to the critical role which the extractives sector will play in the transition away from fossil fuels, the world cannot afford any further unnecessary delays. It is therefore important that governments, communities, and the private sector work together to ensure a just transition to a sustainable economy. In the remainder of this note we consider the background to the dispute between the Eastern Cape communities, Shell and the South African Government as well as some of the key points from the judgment.
Conclusion
The decision as discussed in the above note is a significant one which has brought valuable and notable advancement to the discussion and topic of sustainable development in South Africa. As shown above there is still more work to be done but this decision is one of many which exhibits a step in the right direction in terms of Sustainable development. It would be highly beneficial if the judiciary would continue to develop in this direction which allows for and accounts for the Laws as provided for by NEMA being practically applied.
Bibliography
Constitution of republic of South Africa, 1996.
National Environmental Management Act 107 of 1998.
Cases
Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy [2022] 1 All SA 796 (ECG).
Bengwenyama Minerals (Pty) Ltd and others v Genorah Resources (Pty) Ltd and others 2011 (3) BCLR 229 (2011 (4) SA 113) (CC).
Border Deep Sea Angling Association and others v Minister of Mineral Resources and Energy and others [2021] ZAECGHC 111.
Cipla Medpro (Pty) Ltd v Aventis Pharma SA (Treatment Action Campaign as amicus curiae) and Related Appeal [2012] JOL 29165 (2013 (4) SA 579)(SCA).
Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and another [1973] 4 All SA 116 (1973 (3) SA 685) (A).
Fuel Retailers Association of SA (Pty) Ltd v DirectorGeneral, Environmental Management, Mpumalanga and others 2007 (10) BCLR 1059 (2007 (6) SA 4).
Gongqose and others v Minister of Agriculture, Forestry and Fisheries and others and a related matter [2018] 3 All SA 307 (2018 (5) SA 104) (SCA).
Maqoma v Sebe NO and another [1987] 3 All SA 414 (1987 (1) SA 483) (Ck).
Minister of Law and Order and others v Nordien and another [1987] 2 All SA 164 (1987 (2) SA 894) (AD).
Journal Articles
Murombo, T. ‘From crude environmentalism to Sustainable Development: Fuel Retailers’ 2008 (3) SALJ 486.
Online Articles
