March to the High Court (Update)

Whilst disciplined protestors, led Eastern Cape Environmental Network, demonstrated outside the High Court in Gqeberha and galvanised direct actions around the South African coastline this week, oil and gas prices surged after the European Union moved to cut off Russian crude, and counsel for the applicants, Tembeka Ngcukaitobi SC and Nick Ferreira, took the high ground in the legal challenge against Shell and Impact Africa’s seismic surveys off the Wild Coast.

The decision by the Department of Mineral Resources and Energy to grant Shell an exploration right off the coast of South Africa in 2014 was argued to be unlawful because:

Placing a notice in the Daily Dispatch cannot be construed as meaningful consultation with the affected, rural community of the Eastern Cape who don’t read this publication because it’s neither available nor in their home language. Nor was the community meaningfully engaged. That Shell/ Impact saw fit to consult with some local kings, was argued to be top-down, out-dated and unconstitutional and did not align with just administration.

Shell/Impact argued that their EMPR met the legal requirements of consultation – namely placing a notice in a newspaper in either English or Afrikaans.

2. Shell/Impact relied on the fact that they obtained their permit for a seismic survey before 2014, prior to the requirement for it to have an environmental authorization. By the time that Shell commenced with its seismic surveys, the requirement existed in law for it to obtain environmental authorization (not the environmental management programme (EMPr) the minister declared was authorisation, but rather an environmental impact assessment(EIA) which addresses impacts and spells out mitigation). Shell/Impact did not have that authorization.

3. Climate change implications were not adequately considered by Shell/ Impact nor the minister. The effects of conducting reconnaissance for fossil fuels cannot be ring-fenced to a project, especially considering South Africans are already feeling the effects of climate change. Further exploitation will not only not align with South Africans obligations to reduce its greenhouse gas emissions, but the entire global community cannot afford further emissions.

If a proper Impact Assessment had been done, at the time that the exploration right was granted, all of these impacts should have been considered. And the consequence should have been that these impacts are unacceptable and therefore, no exploration right or no environmental authorization should have been granted. So what has been asked is that a proper assessment process is undertaken.

4.Legislation not considered by the decision makers, is the requirement under the integrated Coastal Management Act. This Act requires any organ of state, that is dealing with management regulation of the ocean environment, to consider the interests of the whole community. The whole community is about considering marine species, plus the people that are impacted and taking an ecosystem approach to considering what is in the interests of this whole community. So it’s not just about one whale, not just about one turtle. It’s not just about one family. It’s about how all of these species, including people, work together and how they’re impacted in the broad context of what has been proposed.

5. It was argued by Shell/ Impact that the applicants should have exhausted the internal avenues of review rather than seeking an urgent interdict. Legal counsel for the applicants made it clear that since Minister Mantashe had made public, biased and derogatory statements about the applicants, and that Shell had made proven donations to the ANC, that it would be “absurd” to expect the minister to accept an internal appeal.

6. Lastly, in a last-minute affidavit submitted by the respondents/Impact Africa, they tried to show what the sensible long term economic benefits would be of exploiting oil and gas resources and and suggested that the respondents were “anti-development”. Counsel for the respondent argued that it they’ve been very clear about what they want. They want to be able to develop in this area from their natural resources in a manner that suits them and allows them to participate in the eco-tourism that they are party to, they want to be able to practice the spiritual freedoms without intervention from these companies. And most importantly, they want to be included in the consultative process and not be an afterthought in the process in the context of South Africa.

The usual timeframe for the delivery of judgment is within three months.

In what Sinegugu Zukulu (Sustaining the Wild Coast) describes as a ‘David and Goliath’ case we’d like to salute the bravery of the applicants calling for alternative ways of dealing with development and standing up to be counted, educating the public at large through this exposure and hopefully affecting change for present and future South Africans and marine inhabitants.

When Environmental Justice Becomes Law, Resistance Becomes Our Duty……