Both Shell and Minister of Mineral Resources and Energy Gwede Mantashe's lawyers assert that an environmental management plan for the proposed seismic survey off the Wild Coast qualified as environmental authorisation, a court heard.
A full bench at the Port Elizabeth High Court in Gqeberha on Tuesday heard arguments by Impact Africa, Shell and Mantashe defending the seismic survey.
The hearing was set for three days this week, but submissions wrapped up on Tuesday afternoon. Judgment has been reserved.
The matter was brought before the court by Wild Coast communities and non-profit organisations seeking to permanently block the seismic survey, which they believe will cause irreparable harm to the environment, as well as to livelihoods and cultural and spiritual practices of communities.
The applicants want the court to set aside an exploration right granted to Impact Africa in 2014, which was later transferred to Shell. They also want the court to set aside the subsequent renewals of the right (in 2017 and 2021). Furthermore, they seek a declarator that an approved Environmental Management Programme (EMPr) under the Mineral and Petroleum Resources Development Act (MPRDA) is not the equivalent of an environmental authorisation under the National Environmental Management Act (NEMA).
Shell has relied on the EMPr as environmental authorisation for the proposed survey.
Mantashe's counsel, Albert Beyleveld SC cited a previous case where it was argued that an environmental authorisation in terms of NEMA was the same as an EMPr, under the MPRDA. Beyleveld similarly put forward that the environmental management plan in effect environmental authorisation.
When the exploration right was granted to Impact Africa, on 29 April 2014, the concept of an environmental authorisation under the NEMA did not exist, the heads of argument submitted by Beyleveld indicated. "The EMPr served the same purpose as the environmental authorisation, which is now prescribed by NEMA," the documents read.
Shell's counsel Advocate Adrian Friedman echoed views that an approved EMPr is to be considered environmental authorisation. By virtue of the EMPr qualifying as environmental authorisation on the initial granting of the right, it would similarly apply in the renewals, Friedman explained.
However, there was a change in legislation in 2014 which the applicants are depending on to argue that the EMPr is not an environmental authorisation under the NEMA.
On 8 December 2014, the One Environmental System kicked in – which streamlined licencing processes for mining, environmental authorisations and water use. The mineral resources and energy minister became the authority to issue environmental authorisations – in terms of the NEMA. And the minister of forestry, fisheries and environment became the appeals authority.
The concept of an EMPr under the MPRDA was "abolished," Shell's court papers indicated. But Friedman explained "transitional provisions" in the NEMA protect an exploration right holder that acquired environmental authorisation under the MPRDA before the One Environmental System was implemented. This was to avoid a situation where a right holder would have to reapply for environmental authorisation. "By virtue of the transitional arrangements, you do not need to get separate environmental authorisation," Friedman said.
This was echoed by a statement issued by the Department of Forestry Fisheries and Environment (DFFE) in November 2021, specifically addressing the proposed seismic survey.
"It should be noted that since the coming into effect of the One Environment System on 8 December 2014, the application process for the seismic surveys was finalised. All decisions made under the MPRDA at the time remain valid and binding until set aside by a court of law," the DFFE previously said.
Impact Africa was granted an exploration right in April 2014, ahead of the One Environmental System being implemented.
Friedman said it would be "absurd" to expect a party that was granted an exploration right before 8 December 2014 to then have to restart the process of getting environmental authorisation after the system came into effect.
Similarly, in Beyleveld's papers, he said that the transitional provisions allow for an EMPr approved under the MPRDA before 8 December 2014, are to be regarded as having been approved in terms of the NEMA. "Such EMPr fulfils the function of an environmental authorisation under the NEMA and must be regarded as such," the papers read.
Representing the applicants Tembeka Ngcukaitobi SC, highlighted that the legal obligation to obtain an environmental authorisation always existed and did not change when the One Environmental Management System came into place. What changed was the centralisation of offices responsible for granting an environmental authorisation. But the substantive obligation to have an environmental authorisation remained, he emphasised.
To say that an EMPr is the equivalent to an environmental authorisation under the NEMA, would be like the court "scratching" out the statute and replacing the words "environmental management plan" with the words "environmental authorisation". Ngcukaitobi said that no judge can do this unless the statute is determined to be unconstitutional.
"Our law is replete with many examples of the courts going against literalism. There is not a single judgment that we have been able to find, which authorises a judge to replace words in a statute and put different words in the statute."
Ncgukaitobi argued that the transitional provisions were actually indicating that if one had an EMPr before the One Environmental Management System came into effect – it would be regarded as having the same status – of an EMPr.
"There is nothing else in this section that would support any interpretation that the court can replace the words environmental management plan with the words environmental authorisation."
The transitional provisions do not change the requirement of an environmental authorisation under the NEMA. "That obligation remains before, it remains during the transition, and it remains after the transition," Ngcukaitobi said.