Shell judgment highlights need for clarity in public consultation
On September 1, Eastern Cape judge president Selby Mbenenge handed down a landmark judgment which cements the importance of public consultation in SA — and the potentially catastrophic consequences of improper consultation on businesses.
The ruling was deservedly welcomed as an important victory for rural communities, informal rights holders and public interest groups alike, but it also underscores the need for legal certainty when it comes to public consultation.
Shell Exploration and Production SA and two associated entities (together, Shell) intended to begin a seismic survey off the Wild Coast in accordance with an exploration right that was granted in 2014.
Shell’s proposed venture raised the ire of thousands of South Africans who had concerns about the survey’s effect on the Wild Coast’s rich and diverse marine life.
In December 2021, the court granted an interim interdict against Shell’s activities. This new ruling follows on the earlier findings.
As a result of the new ruling, the minister of mineral resources and energy’s decision to grant Shell its exploration right was reviewed and set aside.
Mbenenge’s ruling is an important precedent in three respects — the importance of consultation; the need for a risk-averse approach to environmental issues; and the legal enforceability of spiritual beliefs and traditions.
Cases such as Bengwenyama and Maledu have emphasised that consultation must be more than a tick-box exercise — it must be meaningful, culturally appropriate, consensus orientated and inclusive.
Bengwenyama, which concerned competing applications for prospecting rights in Limpopo, set the standard for meaningful consultation and emphasised that it is not a mere formality — that failure to properly consult affected communities can be fatal to a mining operation.
In Maledu, a prospecting right had been granted to a mining company which had concluded a surface lease agreement with the local traditional authority. Maledu affirmed the importance of informal land rights and the agency of communities — in that tribal authorities are not always authorised to make submissions on behalf of communities they ostensibly represent.
Mbenenge’s ruling further cements that line of reasoning. Corporations cannot consult with monarchs or tribal authorities to the exclusion of affected communities. Notices must be in the languages spoken by the affected communities and delivered through means which will effectively reach them and enable them to participate meaningfully in the consultation.
Mbenenge was scathing on Shell’s topdown approach and described it as “a thing of the past which finds no space in a constitutional democracy”.
This ruling has also reinforced the need for a conservative approach to environmental issues, and emphasised the importance of sustainable development, following on precedents such as Earthlife.
That case related to the construction of a power plant in Limpopo and held that climate change effects must be considered for environmental authorisations, but, more broadly, that SA’s energy development must be sustainable.
Finally, the Shell saga also vindicated the justiciability of the constitutional rights to culture, religion and language, and as such protected the diverse customary practices and spiritual beliefs of SA’s communities.
In December, judge Gerald Bloem said that “[what] this case is about is to show that had Shell consulted with the applicant communities, it would have been informed of those practices and beliefs and would have then considered, with the applicant communities, the measures to be taken to mitigate against the possible infringement of those practices and beliefs”.
These remarks ring with sombre mindfulness of SA’s past of cultural, linguistic and religious erasure. Mbenenge reverently described them as “timeless in their force and application”.
The court’s remarks endorse the importance of the rights to practise culture, language and religion. Courts have historically been hesitant to afford these kinds of rights strong legal protection.
This ruling represents a clear precedent that such beliefs and practices are worthy of legal protection, and that a decisionmaker must give due consideration to them before making a decision that may infringe on them. Where infringement is unavoidable, mitigative steps must be taken to ameliorate the degree of infringement.
These principles have now become crystallised in our law — and this is an important and valuable jurisprudence.
The judgment should be welcomed for its potential to ensure that development happens sustainably and responsibly, and with respect for the human dignity of the communities that it affects.
However, when one considers the judgment, the following questions arise: When has a corporation consulted sufficient stakeholders? Who must it consult, and who can it reasonably exclude? Is there a cut-off period before it can be accepted that a mining right has been validly granted? What other corporations and mining rights are at risk of judicial review?
It bears emphasising that Shell did hold a public consultation process. And, according to it, it did all that was required of it in terms of the already existing regulations governing public consultation.
Nevertheless, the court considered its consultation process inadequate, because Shell did not enable the meaningful participation of the affected communities.
Mining laws must be reconsidered to reflect the jurisprudence developed by our courts. It is desirable for both the mining industry and the communities it affects that we have certainty about what is legally required in terms of consultation.
This will yield twin benefits: corporates will budget to ensure compliance and lessen the risk of legal intervention down the line, and communities will have clearly defined rights without a court having to vindicate those rights after long and expensive litigation.