CAPE TOWN - The hearing into the River Club redevelopment which includes plans for Amazon's new African headquarters on a 15-hectare parcel of ancestral indigenous land, got under way in the Western Cape High Court on Wednesday as extensive arguments for the applicants were heard.
The Goringhaicona Khoi Khoin Indigenous Traditional Council and the Observatory Civic Association (OCA) have approached the court to interdict Liesbeek Leisure Properties Trust (LLPT) from undertaking any construction, which includes the proposed Amazon development.
The parties are also asking the court to review and set aside decisions by the provincial department of Environmental Affairs and Development Planning, as well as the City’s decision to rezone the property.
One of the key issues for Judge Patricia Goliath was the fact that Heritage Western Cape (HWC) was not present during proceedings, while she said a large part of the applicant’s case relied on their views.
“The applicant relies on objections raised by HWC. (But we) can’t debate these because they are not here.”
Lawyer for the applicants, Alan Dodson replied: “It doesn't take away from the fact that the process was invalid, post rationalisation. They did not do mapping properly. We submit there wasn’t proper consultation.”
Dodson argued that: “The HWC furnished its final comment on the Second Heritage Impact Assessment (HIA) and the supplementary report (of the developers) on February 20 2020. The final comment reiterated the points made in the interim comment and advised the LLPT that the Second HIA, with its supplement, did not meet the requirements of section 38(3) of the National Heritage Resources Act (NHRA).”
Section 38(3) of the NHRA outlines the requirements for a HIA.
“The HWC's overriding concern was that the Second HIA had not accounted for the intangible significance of the site flowing from its historical associations, and that the assessment was consequently flawed. The interim comment concluded with the recommendation that a specialist consultant with expertise in intangible heritage should be engaged to provide a supplementary report,” Dodson said.
For the Forest Peoples Programme, an international organisation that champions First Nations Rights and joined the case as amicus curiae, advocate Michael Bishop began his argument around the links to international law and their relevance to the case in terms of the rights of indigenous peoples.
“The general duty is good faith consultation with the goal of reaching agreement. That means you must consult with indigenous people on their terms, not the State’s terms.
“So when this consultation happens it must be a respectful consultation. There are instances in international law where you need not only to consult with indigenous community but you need their consent.”
The matter continues.
Cape Times