The recent High Court case that interdicted Shell’s seismic blasting campaign off South Africa’s Wild Coast demonstrates how indigenous communities are using the courts to protect their constitutional and customary rights. Representatives of various indigenous fishing communities along the Wild Coast argued before the court that they were not sufficiently consulted by Shell in the process leading up to the approval of its exploration right and subsequent seismic survey, which Shell attempted to commence late in 2021.

Companies applying for mining rights need to be aware that indigenous communities and their rights are not a secondary formality in the application process. These communities and their constitutional and customary rights must be taken seriously, and they must be meaningfully included in decisions that are likely to affect them.

Supporters of environmental non-governmental organisations gathered in Cape Town’s Newlands district to protest against seismic survey activities planned by the oil company Shell between Cape Town’s beaches in Morgans Bay and Port St Johns in Cape Town, South Africa, on 4 December 2021. Photo: Xabiso Mkhabela/Anadolu Agency via AFP

In the High Court, the applicants presented two core arguments. Firstly, they contended that Shell’s seismic blasting project was illegal because it did not obtain environmental authorisation under the National Environmental Management Act 107 of 1998 (NEMA). This has been discussed in a previous article. Secondly, representatives of the inter alia Umgungundlovu, Dwesa-Cwebe and Port St Johns indigenous communities argued that Shell’s exploration right was invalid because the affected traditional communities were not adequately consulted as required by the Mineral and Petroleum and Resources Development Act 28 of 2002 (MPRDA).

The court ultimately held that on the evidence, Shell’s consultation process was “inadequate and substantially flawed”. Since the exploration right was initially awarded in 2014 based on this defective consultation process laid out in its Environmental Management Programme (EMPr), Shell’s seismic blasting operation was deemed unlawful and invalid.

What constitutes meaningful consultation in South African law?

The MPRDA Regulations as amended in 2020 provide that the required consultation is not a mere formality – it must be “meaningful”. The Regulations define “meaningful consultation” as consulting in good faith, in a way that gives the landowner, lawful occupier and/or interested and affected persons all the relevant information, and reasonable time and opportunity to make an informed decision regarding the impact of the proposed activities.

The  Regulations also stipulate that meaningful consultation with interested and affected persons must be conducted in terms of the public participation process prescribed in the amended Environmental Impact Assessment (EIA) Regulations. These regulations were promulgated in terms of NEMA in 2014, and amended in 2017.

In terms of the EIA regulations, the public participation process must provide potentially interested and affected parties with access to all information that reasonably has the potential to influence any decision with regard to an application. All potential interested and affected parties must be given a reasonable opportunity to comment on the EMPrs once an application has been submitted. The regulations also stipulate specific accepted notification procedures.

The indigenous communities alleged that Shell failed to meaningfully consult them due to the following flaws in their process:

Flawed stakeholder analysis

  • Shell’s EMPr identified potential interested and affected parties through the analysis of stakeholders and potential stakeholders engaged in similar previous studies in the area. Shell did not explain why it considered this backwards-looking process to be a sufficient identification of stakeholders. Members of the affected traditional fishing communities were not included in this list. The court held that this identification process excluded traditional communities which were potentially significantly impacted by the seismic survey. This behaviour is indicative of the unfortunate and consistent disregard of indigenous communities and their rights in decisions that affect them.

Inadequate notification procedure

  • Shell responded to the above criticism by claiming that no one was precluded from registering themselves as an interested and affected party in response to the newspaper advertisements they publicised. However, their notification procedure was inadequate to meaningfully inform all potential interested and affected parties of the application.
  • The EIA regulations require applicants to place an advertisement in at least one provincial or national newspaper. In this sense, Shell technically did what was required of them in terms of notification procedures. However, the regulations also demand that the person conducting the public participation process ensures that participation by potential or registered interested and affected parties is facilitated in such a manner that all of the parties are provided with a reasonable opportunity to comment on the application.
  • The court held that publishing advertisements in only English and Afrikaans newspapers, when the languages spoken in the communities in question are isiZulu or isiXhosa, and many community members are illiterate, was not a sufficient notification procedure. This excluded potential interested and affected persons from the consultation process – they could not reasonably be expected to register themselves without knowledge of the proposed seismic survey. Local radio messages and the publication of advertisements in local community newspapers could have avoided this problem.
  • Furthermore, the draft EMPr was published on Shell’s project website, and a notification of this was sent to all the already registered interested and affected parties. So, if not registered, potential interested and affected parties would not know where to find this draft programme or how to comment on it.

Inaccessible group consultation meetings

  • The group consultation meetings were held in Port Elizabeth, East London and Port St Johns. So, even for those community members who were aware of the consultation proceedings, the meetings were held in areas that were largely inaccessible to the indigenous communities in question, where transport to urban areas is hard to come by and expensive.

Disregard for indigenous community custom

  • Shell only consulted with the leaders of the traditional communities, and assumed that those leaders could speak on behalf of all community members. However, this overlooks the nuanced customary law of these communities, according to which top-down decision-making is avoided in favour of genuinely participatory processes. Custom demands that there are multiple levels of authority, and decision-making extends upwards from the household, through the extended family, the clan and the village to the wider community. The court rightly argued that relying on indigenous leaders to decide on behalf of their ‘subjects’ was reminiscent of tactical colonial and apartheid-era distortions of custom, when “One Chief, One Vote” logic was used to politically disempower indigenous communities and personally benefit their leaders. Furthermore, the leaders consulted did not have jurisdiction over all the indigenous fishing communities along the Wild Coast affected by the proposed seismic survey.

Failure to follow through on legitimate expectations

  • Shell did not even follow through with the defective consultations they proposed in its EMPr. In its EMPr, Shell requested five additional meetings with indigenous leaders. These meetings were not held. This adversely affected the legitimate expectation of members of indigenous communities, based on an express promise by Shell, to be consulted before the seismic survey went ahead. When there is a reasonable expectation of a procedural benefit, administrative law demands that procedural fairness requirements must apply. These requirements demand that the promised communities be given an opportunity to be heard in line with the principle of audi alterem partem (literal meaning: “listen to the other side”).

Consequently, for consultation with interested and affected parties to be considered adequately meaningful, applicants for mining rights must:

  1. Conduct forward-looking stakeholder analysis, and explain their method for identifying stakeholders.
  2. Adopt a notification procedure that is reasonably inclusive of all interested and affected parties. There must be adequate consideration of the social profile, levels of literacy and societal norms of potential stakeholders.
  3. Ensure consultation meetings are physically accessible to all interested and affected parties.
  4. Genuinely take into consideration indigenous customs in the process of engaging with communities. Respect consensus-seeking practices and traditional leadership jurisdiction. Customary law is not an after-thought – it is constitutionally equivalent to the common law, so it must be accommodated, not merely tolerated.
  5. Uphold legitimate expectations of procedural benefits.

Learning from the Shell case

It is high time for mining rights applicants to give indigenous communities, and customary law, the recognition and respect that they deserve. Learning from the Shell case can save mining companies money, time and reputations.

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Helen Acton is a legal analyst at GGA. She holds a Bachelor’s degree in Politics and Philosophy, and an LLB from the University of Cape Town. She is interested in analysing political issues from a legal perspective. Constitutional and administrative law are her primary interests, especially the role they can play in promoting socio-economic equality and improving governance performance.