A Corporate Giant vs the Law - Shell Interdicted from South Africa's Wild Coast in High Court Ruling

Seismic testing for oil and gas on South Africa's Wild Coast by Royal Dutch Shell was successfully halted in the urgent interdict granted by the Makhanda High Court pending a final ruling on Tuesday 28th December 2021.

The Court, per Judge Gerald Bloem ruled that the oil giant, Shell, infringed the constitutional rights of the indigenous communities.

However, the bigger question for these affected communities and other interest groups who may be confronted by a similar situation in future, is whether indigenous communities in South Africa have sufficient rights to challenge and/or prevent the government and private individuals from mining exploration, and the procedural grounds for enforcing the enjoyment of those rights when there is an interference either from the government or private citizens such as mining companies and so on.

To be more specific, the subject area, where the answer to the foregoing questions will be considered in light of the dispute between Royal Dutch Shell, and the indigenous Xolobeni, Amadiba, Dwesa-Cwebe, Hobeni, Port St Johns, and Kei Mouth communities, is the Wild Coast- an over 6000 square kilometers stretch of coastline between Morgan Bay and Port St Johns in Eastern CapeProvince, renowned for its spectacular natural beauty, and home to rare sea life.

Starting from the Bill of Rights in the Constitution which describes the human rights of all people in South Africa, the South African legal framework has substantive provision for the questions posed above. Other laws include:

1. The Mineral and Petroleum Resources Development Act of 2002 (also called the MPRDA) which lists the processes that a mining company must follow to obtain a license or permit to mine in South Africa. The MPRDA is administered by the Department of Mineral Resources.

2. The Interim Protection of Informal Land Rights Acts (IPILRA) because the communal owners hold informal rights to land in accordance with their law and custom.

3. Finally, the National Environmental Management Act, 1998 (NEMA) because mining activities have an environmental dimension which is administered by the Department of Environmental Affairs.

As the supreme law of South Africa, the Constitution is the starting point for the right of indigenous communities to determine and participate in the exploitation of their lands for any purpose. It gives every South African the right to just administrative action, and the right to access relevant information held by the government or companies (including mining companies), that is needed to protect and enjoy those constitutional rights. This means that when the government decides to award mining rights over an indigenous communal land, to a company as was done by the Mineral Resources & Energy Minister -Gwede Mantashe to Royal Dutch Shell, those decisions must be fair and properly made.

One of the ways the government or a prospecting company can comply with this constitutional requirement of fairness in mining decisions, is to give everyone with an interest in that decision, sufficient information, and an opportunity to have their say, and articulate their demands without undue pressure. In the instant case, Royal Dutch Shell and Mr. Mantashe did the opposite, and this failure, was the main reason for Judge Bloem’s Interim Interdict. He said “In all the circumstances, it seems to me that the exploration right, which was awarded on the basis of a substantially flawed process, is thus unlawful and invalid”

Furthermore, the Constitution provides that everyone in South Africa has the right to a healthy environment that does not harm their health or wellbeing, and South African Courts towing the line of international law, have clarified on several occasions, that the environment includes the land, water, air, people, plants, and animals, as well as buildings and heritage sites all of which can be affected by mining. It is therefore correct to assert that the Wild Coast communities mentioned above have a constitutional right to demand that Royal Dutch Shell sufficiently explains how it is going to protect the environment and the people from pollution resulting from mining, as well as consequential disruptions to their traditional life and practices.

If Royal Dutch Shell fails to provide this required information sufficiently, the community representatives/leaders of the Wild Coast can send an objection to the Department of Mineral Resources praying the department not to grant mining rights to Shell, or they can proceed to the court to enforce their constitutional rights.

It is however advised that the drafting of this request for information and subsequent objection in the event of no response, should be handled by a duly qualified and experienced legal practitioner or law firm, to ensure that the rights and wishes of the community are properly captured and communicated to the prospecting company, or government department, or the court.

Apart from an indigenous community’s right to be consulted properly before mining takes place, or to demand protection for the environment, their health and wellbeing, the community might be completely opposed to mining for ancestral or cultural reasons. Indeed, the courts have stated severally that when land is held on a communal basis, the community has the right to refuse consent to exploration altogether even after proper consultation.[1]However, there is a legal distinction where the land is a common law land holding where the MPRDA applies, in which case the consent of the landowner(s) is not required for a mining license to be granted by the state.

[1] Section 2 Interim Protection of Informal Land Act (IPILRA).

This Royal Dutch Shell dispute with the Wild Coast communities in South Africa shines the spotlight on a delicate and constantly evolving subject for South Africa and the rest of the world, for which concrete details cannot be covered in this brief, but nevertheless important as the country grapples with pressing challenges of climate change, and socio-economic inequality.

Therefore, if you would like to find out more about the rights of indigenous communities in South Africa to engage with the government and private entities in the determination of land exploration rights, and the actual limits of those rights kindly visit the Ndou Attorneys Environmental Rights Guide. The firm has experienced legal experts who would help you understand the South African environmental and mining legal landscape and guide you on how to engage with government agencies for appropriate action within the remit of the law.

JULY 2022