From the Brink: Enablers & Preventers
A storm brewed whilst Justices Ponnan, Mocumie, Matojane, Smith and Seegobin of the Supreme Court of Appeal (SCA) delivered judgement on the appeal by Minister Mantashe, Shell Exploration & Production South Africa and Impact Africa Ltd against the High Court injunction that stopped Shell’s exploratory seismic survey off the Wild Coast looking for oil and gas deposits.
Morning of June 3: Acknowledging the “more illusory than real” public participation process, plus the failures by the ministries underpinning the unlawfulness of the administrative process of Shell/ Impact’s application, the appeal was dismissed with costs.
Shell, driven by the conviction that they can traverse the oceans polluting, then move on to the next pristine environment without changing their ethical, ecological or economic behaviour, placed its third application to renew its exploration rights on 21 July 2023, after the first and second renewal were set aside by the High court. Shell did so without informing relevant stakeholders and impacted communities.
In twists of irony and logic the SCA upheld Shell’s application to renew its exploration right, even though the application process and the granting of the right are fundamentally flawed, provided that “a further public participation process be conducted to cure the identified defects in the process already undertaken, especially as the parties who claim to have an interest in the matter have now been identified”.
Ignoring the increasingly severe weather, the SCA focused on Shell and Impact’s narrative around the R 1.1 billion spent so far on their permitting processes (really?); the “chilling effect on foreign investment” and a “sterilising effect” of “ the economic and social benefits that will fail to materialise without the exploration being undertaken”. The SCA failed to challenge the “evidence provided by Shell and Impact”, thereby prejudicing a decision not to proceed.
If the economic benefits of exploiting offshore gas are to be considered, so too must the climate harms related to the future exploitation be anticipated – severed supply-chains, rising prices, mounting food insecurity, and uninsurable homes and businesses[1]. Not only did the Makhanda case make clear this exploration will not provide significant social benefits or employment to locals, but also the overwhelming evidence of climate change acceleration brought on by burning fossil fuels.
Afternoon of June 3: The storm gathered momentum along the eastern seaboard, becoming deadly with floods taking 14 lives and displacing 3000 in the Eastern Cape; creating two tornados taking 12 lives, wrecking 7000 households and displacing 17000 people in KwaZulu Natal.
June 5: Whilst South African communities rally to bring water, food, blankets and survival necessities to those who have lost everything in extreme weather, UN Secretary-General António Guterres addressed the world concerning limiting long-term global warming to 1.5°Celsius for multispecies survival.
The Secretary-General highlighted the need to distinguish between climate enablers and climate preventers. Enablers are those that wilfully increase emissions, like the fossil fuel industries, supportive governments and the rich, while preventers work to reduce climate shocks through stringent emission cuts, ethical leadership, and delivery of clean, affordable energy for all.
Guterres didn’t mince his words. He made it clear that new data from leading climate scientists show the remaining carbon budget to limit long-term warming to 1.5 ° is now around 200 billion tonnes. Yet globally we are generating 40 billion tonnes of carbon dioxide a year. Meaning that by the time offshore oil and gas projects like Shell and Impact Africa’s strike petroleum reserves, the entire planetary carbon budget will have been exceeded and their enabling further emissions will tip us closer to a 2° warmer world and even greater chaos.
The SCA has been extremely short sighted and irresponsible, they have enabled risk where the High Court setting aside of the exploration right and the renewals had prevented risk. Do the SCA judges assume that the cascading complexities and the systemic impacts of climate risk will stand still whilst Shell renews their application and tick-boxes public participation? Should the minister grant the renewal of Shell/Impact’s exploration license, and if it is Gwede Mantashe, he will, then the SCA has contributed to both the construction of risk and the reinforcement of risk. Climate hazard is very real for South Africans; preventing it is a duty that Makhanda court judges took seriously and the Supreme Court judges haven’t.
Recognising prevention of climate disasters is a shared responsibility and right, but we are most certainly not all in this together – if it relies on preserving a system of western privilege built on burning ever more fossil fuel, obscuring the seriousness of global warming and species extinction by “distorting the truth, deceiving the public, and sowing doubt[2]”, or through denying the collective wisdom heritage that refuses the mining of a sacred ocean.
Guterres reminded us,” it is a travesty of climate justice that those least responsible for the crisis are hardest hit: the poorest people; the most vulnerable countries; Indigenous Peoples; women and girls.”
The theatre of ‘mitigation and adaption’ of the offshore oil and gas public participation process be damned – we demand reduction and prevention.
The Sustaining the Wild Coast, Natural Justice, Allrise Attorneys, Cullinan and Associates, Greenpeace Africa, Legal Resources Centre and Wild Coast communities are considering an appeal to the Constitutional Court.
[1] Guterres makes this point in hi June 5th 2024 speech
[2] This is Guterres’ claim that the oil and gas industry has been ‘greenwashing’ the harms of oil and gas development, thereby preventing reductions in emissions (June 5th 2024 speech)
Oceans Not Oil 