'South African communities vs Shell: high court victories show that cultural beliefs and practices count in climate cases’ 18 May 2024

When the Shell petroleum company announced in 2021 that it wanted to explore for fossil fuels off South Africa’s pristine Wild Coast, Indigenous communities in the area immediately fought back through the country’s courts. In two separate cases, the communities successfully challenged Shell. They won both cases, winning an interim interdict to put Shell’s exploration on hold and having the company’s exploration right set aside. Shell is appealing the second ruling on several, largely procedural, grounds; that process got underway in the Supreme Court of Appeal on 17 May this year. If the Supreme Court of Appeal upholds the High Court’s judgment, this would affirm the Indigenous communities’ rights and interests. If, on the other hand, it overturns the judgment, the exploration right, which was granted 10 years ago, would continue to stand.

…One of the applicants, Sinegugu Zukulu, is a resident of the Baleni village on the Wild Coast. He is a part of the Amadiba community, which has been living for several centuries in the area. Like other members of his community, Zukulu takes pride in the land on which he lives, partly because his ancestors fought to protect it. In his affidavit, Zukulu said that the land belonged to the community – but the community also belonged to the land: The land sustains us and is central to our identity. The courts engaged with the communities’ cultural beliefs and practices. They also recognised that Indigenous peoples have a wealth of knowledge related to sustainable living, and that their livelihoods, cultural practices and identities are all threatened by the proposed activities.

…These cases represent the first time that Indigenous communities in South Africa specifically invoked their cultural rights in climate litigation. This decision adds to a growing body of indigenous-oriented climate litigation cases around the world, such as in Australia and the US. The judgments are especially noteworthy as they indicate that South Africa’s courts are willing to engage with the cultural beliefs and practices of Indigenous communities, as well as their knowledge related to sustainability.