The Shell seismic survey judgment: A further endorsement of meaningful consultation

Gaopalelwe-MathibaAuthor: Gaopalelwe Mathiba
Senior Lecturer, Department of Private Law, UCT

On 1 September 2022, a full bench of the Division of the High Court, sitting in Makhanda and presided over by Mbenenge JP, handed down a significant judgment in respect of a review petition that sought to challenge the lawfulness of the granting of an exploration right for the exploration of oil and gas in the Southeast Coast by the DMRE to the multinational petroleum company – Shell South Africa (Sustaining the Wild Coast NPC & Others v Minister of Mineral Resources and Energy & Others Case No.: 3491/2021). The relevant facts of the case can be summarised as follows: The petroleum company was awarded an exploration right on April 2014. The right was renewed two times, in December 2017 and again in July 2021. Further, the right was supposedly awarded in terms of the applicable laws i.e. the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) which requires, inter alia, environmental impact assessment and authorisation. It would appear that the only way Shell could exercise its exploration right was by conducting a seismic survey off the Southeast coast that was planned to commence in December 2021. Loosely described, the offshore seismic survey mechanism involve using explosive sound-waves using air-guns directed downwards as part of a mapping technique to determine whether oil or gas deposits may be present deep below the seabed of a surveyed area. It is exactly at this point where the contention arose between, on the one hand, the local customary communities and public interest entities and, on the other, the DMRE and petroleum companies.

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