Constitutional Court Sets Aside Shell Exploration Right

The Legal Resources Centre welcomes today’s Constitutional Court judgment setting aside the exploration right granted to Impact Africa and Shell for oil and gas exploration off the Wild Coast.

The judgment is a significant victory for Wild Coast communities and environmental organisations, who have challenged the lawfulness of the exploration right and the failure to meaningfully consult communities whose lives, livelihoods, culture and spiritual relationship with the ocean stood to be affected.

The Court set aside the administrative process and the decision to grant the exploration right, as well as the subsequent renewals. This means that Impact Africa and Shell no longer hold any right to explore for oil and gas off the Wild Coast on the basis of the 2014 exploration right.

The matter reached the Constitutional Court after both the High Court and the Supreme Court of Appeal found that the exploration right had been unlawfully granted. However, the Supreme Court of Appeal allowed Shell and Impact Africa an opportunity to supplement the process through further public participation at the renewal stage.

The Constitutional Court rejected that approach. It confirmed that consultation cannot be treated as an afterthought or used to rescue an unlawful process after communities have already been excluded from decisions that may affect them.

The judgment affirms that meaningful public participation is not a box ticking exercise. It is a constitutional requirement that recognises the agency, dignity and rights of affected communities. This is especially important in the context of extractive industries, where decisions about land, oceans and natural resources can have lasting consequences for communities and future generations.

The Court recognised the rights of Wild Coast communities to culture, spiritual life, customary fishing, food, livelihoods and a healthy environment. It also made clear that claims of economic development and job creation cannot be accepted at face value without asking who benefits, how secure those benefits are, and what social, cultural and environmental costs communities are expected to bear.

The judgment is also important for climate and environmental law. The Court located the matter within the broader climate crisis and recognised that environmental decision making must be informed by constitutional duties, scientific knowledge, international developments and the foreseeable impacts on present and future generations.

Kimal Harvey of the Legal Resources Centre said:

“No decisions about our land or resources can be made without us.”

“This judgment confirms that the rights of communities cannot be pushed aside in favour of commercial interests. The Constitutional Court has made clear that meaningful consultation must happen before decisions are made, not after the fact when an unlawful process has already excluded the people most affected.”

The Court also rejected the argument that the companies’ financial investment should justify preserving the unlawful process. It found that allowing investment to outweigh serious constitutional violations would signal that the rights of affected communities are subordinate to commercial interests.

For the LRC, this judgment has implications far beyond the Wild Coast. It sets an important precedent for future oil and gas applications, and for all decisions where communities are asked to carry the cost of development decisions made without them.

The judgment confirms that the Constitution requires more than procedural compliance. It requires decision makers and companies to respect the rights, histories and lived realities of the people whose land, waters and resources are at stake.

The LRC congratulates the Wild Coast communities, environmental organisations and legal partners who have carried this matter over many years. Their persistence has secured an important affirmation of community rights, environmental protection and constitutional accountability.