ZA Constitutional Court Sets Aside Shell's Wild Coast Exploration Right

• The Constitutional Court has set aside Shell and Impact Africa's right to seismic exploration off the Wild Coast.
• The court declared that the exploration right was unlawful and could not be cured through a subsequent renewal process.
• The ruling emphasizes the importance of meaningful community consultation in the extractive industry.
• Companies must consider climate change and human rights when seeking project approvals.
• The decision may impact future projects and applications, particularly those involving seismic surveys.

"... a just and equitable remedy must consider the public good and the rule of law, vindicate the rights of the aggrieved party and be fair to all the parties ..."

In a significant victory for environmental justice activists and some Wild Coast communities, the Constitutional Court has set aside Shell and Impact Africa's right to seismic exploration off the coast. The court's majority judgment, handed down by Justice Jody Kollapen on Friday, declared that the exploration right granted in 2014 was unlawful and could not be cured through a subsequent renewal process.

The ruling marks a major milestone in the long-standing dispute over the impact of seismic surveys on marine life, livelihoods, and cultural practices. The communities and activists had argued that they were not properly consulted before the surveys began, and that the exploration right was granted without considering climate change and legal prescripts.

Justice Kollapen emphasized that consultation is a fundamental process that affirms human dignity by giving affected communities a seat at the table. He noted that the extent and seriousness of the breach in this case were profound, and that telling communities more than a decade after the fact that they may now be consulted was not curative.

The exploration right at issue was granted to Impact Africa by the Department of Mineral Resources in 2014, and transferred in half to Shell in 2021. The right had been the subject of several court challenges, including a ruling by the Makhanda High Court in September 2022 that it was granted unlawfully. The Supreme Court of Appeal (SCA) subsequently confirmed this finding but suspended the decision pending an application to renew the right.

The Constitutional Court's majority judgment sets aside the SCA's suspension and declares that the exploration right is unlawful and cannot be renewed. This ruling has significant implications for the extractive industry, particularly with regard to community consultation and the consideration of climate change and human rights in project approvals.

The Constitutional Court's ruling sets a precedent for the importance of meaningful community consultation in the extractive industry. Lawyers advising clients in this sector should be aware that the court's decision may impact future projects and applications, particularly those involving seismic surveys or other activities with significant environmental and social implications.

The ruling also highlights the need for companies to consider climate change and human rights when seeking project approvals. As Justice Kollapen noted, consultation is not merely a formal process but a fundamental aspect of upholding human dignity and affirming the rights of affected communities.

Lawyers advising clients in the extractive industry should be aware that the Constitutional Court's ruling sets a precedent for the importance of meaningful community consultation, which cannot be cured by a subsequent renewal process. This may impact future projects and applications, particularly those involving seismic surveys or other activities with significant environmental and social implications.

Source: Original reporting via Court Victory for Wild Coast Activists