- Today the Grahamstown High Court in Makhanda ordered Shell to immediately cease its seismic blasting along South Africa’s Wild Coast, while ordering Shell and the Minister of Mineral Resources and Energy to pay the costs of the application for the interim interdict.
In granting the interdict sought by communities affected by the blasting and supporting civil society organisations, Judge Gerald Bloem said that Shell was under a duty to meaningfully consult with the communities and individuals who would be impacted by the seismic survey, and that based on the evidence provided, Shell failed to do so in the case of the applicant communities who hold customary rights, including fishing rights. They also hold a special spiritual and cultural connection to the ocean. It was thus crucial for Shell to consult these communities and understand how the survey may impact upon them. They did not. The judge found that the exploration right, which was awarded on the basis of a substantially flawed consultation process is thus unlawful and invalid. The applicants’ right to meaningful consultation constitutes a prima facie right which deserves to be protected by way of an interim interdict.
The applicants rely on cultural and spiritual harm; the threatened harm to marine life; and the negative impact on the livelihood of small-scale fishers, arising from the harm to marine life. In its answering affidavit, Shell elected not to deal with the aspect relating to the threat of harm to the applicant communities’ cultural and spiritual beliefs, the applicants allegations in that regard are accordingly undisputed. The applicants also provided a massive body of expert evidence on the threat of harm to marine life, and this evidence establishes that, without intervention by the court, there is a real threat that the marine life would be irreparably harmed by the seismic survey. Against the acceptance of the body of expert evidence, Shell’s denial that its activities will have an adverse impact on marine life cannot be sustained. The judge was satisfied that the applicants have established a reasonable apprehension of irreparable harm to marine life. In addition to the harm to marine life, the applicants have also established how the seismic survey will firstly, negatively impact on the livelihood of the fishers, and secondly, cause cultural and spiritual harm.
Since the applicants were successful in obtaining the interim interdict, and because Minister Mantashe also opposed the application, the Minister and Shell are accordingly ordered to pay the applicants’ costs.
Shell has been interdicted from undertaking seismic survey operations pending the finalisation of Part B of the application. A court will need to determine whether or not Shell requires an environmental authorisation obtained under NEMA, when part B of the application is dealt with at a date yet to be determined. The Applicants may also challenge the awarding of the exploration right based on the failed consultation. Shell may appeal the interim interdict, but it will not suspend the order at this stage.
“The voices of the voiceless have been heard. The voices of the directly affected people have at last been heard, and the constitutional rights of indigenous people have been upheld.
This case reminds us that constitutional rights belong to the people and not to government, 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. This victory is hugely significant because we have made sure that the rights of indigenous communities are kept alive.” – Sinegugu Zukulu, Sustaining the Wild Coast (SWC)
“The case has huge significance in that it shows that no matter how big a company is, it ignores local communities at its peril. This case is really a culmination of the struggle of communities along the Wild Coast for the recognition of their customary rights to land and fishing, and to respect for their customary processes. The Amadiba and Dwesa-Cwebe communities fought for such recognition in earlier cases, and the Makhanda High Court reminded the state and Shell today, once again, that the indigenous rights of communities are protected by the Constitution from interference, no matter how powerful the intruders are.” Wilmien Wicomb, Legal Resources Centre.
Author: Bryan Groenendaal