Cape Town - The battle between Shell and Wild Coast communities resumed on Monday in the Gqeberha High Court where arguments as to the lawfulness of Shell’s seismic survey operations to assess oil and gas prospects off the West Coast got under way.
In December last year, the Makhanda High Court temporarily interdicted Shell from continuing its oil and gas project – pending this hearing, which was taking place before a full bench, over three days – from Monday to Wednesday.
Applicants included civil society organisation Sustaining the Wild Coast, Natural Justice, Greenpeace Africa and other Wild Coast residents, who were represented by Richard Spoor Attorneys and the Legal Resources Centre (LRC).
The respondents included Mineral Resources and Energy Minister Gwede Mantashe, Forestry, Fisheries and the Environment Minister Barbara Creecy, and Shell.
Advocate Tembeka Ngcukaitobi argued the case for applicants Sustaining the Wild Coast and the affected coastal communities, while Nick Ferreira argued the case for applicants Natural Justice and Greenpeace Africa.
The applicants said the blasting from the seismic surveys would likely cause significant and irreparable harm to marine life in the affected area, which would impact the livelihoods, constitutional rights and customary rights (including fishing and cultural rights) of coastal communities.
However, SC Jeremy Gauntlett, who represented respondent Impact Africa Limited, argued that they had not heard a word from the applicants for 50 years about seismic surveys and in that time no evidence of harm to marine animals was demonstrated.
Impact Africa received the exploration right from the Department of Mineral Resources and Energy (DMRE), in May 2014, but Natural Justice said they did not undertake an environmental impact assessment or obtain an environmental authorisation, in terms of the National Environmental Management Act (Nema).
Ngcukaitobi’s key arguments before the court were inadequate public participation in the proposed project, the lawfulness of conducting a seismic survey without an environmental authorisation, violations of communities’ constitutional rights, failure to consider climate change and the interests of the whole community, and procedural unfairness.
Legal Resources Centre (LRC) attorney Wilmien Wicomb said: “The applicant communities told the court exactly how the top-down process of consultation, employed by Shell and Impact, and approved by the minister, excluded them from development decisions. That is not sustainable development.”
Wicomb said they expected the respondents to focus on technical defences to kick the applicants out of court.
Sustaining the Wild Coast spokesperson Sinegugu Zukulu said: “This case reminds us that constitutional rights belong to the people and that the only way that we can assure that the rights of indigenous people are living – and not just written on paper – is if we challenge government decisions that disregard these rights.”
Tuesday’s proceedings will begin with arguments by the legal counsel for the Energy minister, and other respondents.