Shell and the Department of Petroleum and Mineral Resources (DPMR) hope to overturn a High Court Ruling that prevented the oil company from drilling off the country’s West Coast.
Following the discovery of oil reserves in Namibia, applications were made to begin drilling off the coast of South Africa.
TotalEnergies was the victor in this and had intended to pass over the drilling rights to Shell, which would oversee the operation.
However, this process and goal were disrupted when Green Connection and Natural Justice, both environmental groups, raised concerns over the legality of the authorisation and drilling rights.
The companies took these concerns to the High Court and won, with the court ruling that the process to award environmental authorisation was deeply flawed for five major reasons:
- It ignored coastal protection laws
- Climate change impacts were not properly assessed
- No assessment of cross-border harm was conducted
- The public was kept in the dark on key emergency plans
- No proper study of what a disaster would mean for communities
Based on this, the court revoked the government’s decision to provide TotalEnergies with drilling authorisation, and the matter was returned to the DPMR.
The court also noted that new assessments with greater information and public participation would be required for new authorisation to be awarded.
The DPMR Minister and Director General, as well as Shell, in response to this, filed applications for leave to appeal.
This would mean the right to challenge the High Court’s ruling through the Supreme Court of Appeal or before a full bench of the High Court.
Green Connection and Natural Justice expressed their disappointment in this move, noting that they are hopeful that the High Court will uphold its ruling and the huge victory for human rights and climate justice it represents.
“Moreover, without the public having had a meaningful opportunity to interrogate the full, updated Oil Spill and Blowout Contingency Plans, we do not see how this can be granted,” said Legal Advisor to The Green Connection, Shahil Singh.
He went on to say that by not making the plans publicly available until after the environmental approval was granted, the public’s right to comment on emergency preparedness was violated, which seemed to motivate the ruling.
Shell and the state have argued against this, indicating that the environmental groups had misapplied the law and that the process was legally sound.
Interestingly, the Department of Forestry, Fisheries and the Environment has chosen not to appeal, filing a Notice to Abide.
Presently, the High Court must now decide whether to approve the appeal, and if not, the parties may petition a higher court.
While this process is underway, the current ruling will remain in effect.
History of hurdles
This current battle is just the most recent in Shell’s history, with the oil giant having previously lost a court battle over proposed seismic surveying off the Wild Coast in South Africa last year.
It lost this court battle for similar reasons, with issues of a lack of public consultation coupled with the potential harm to the marine environment that the survey could cause being raised.
The Constitutional Court ruled that the High Court’s decision to grant the surveying rights was unlawful.
Shell continues to focus on its upstream business, but these setbacks have likely contributed to its plan to sell its downstream business, which includes 600 petrol stations.
These stations could reportedly be sold to buyers from Abu Dhabi or Switzerland.
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