Civil society, traditional communities and small-scale fishers have been vindicated after the Gqeberha High Court on Thursday ruled that petroleum giant Shell’s right to seismically blast the Wild Coast was granted unlawfully.
Cape Town - Civil society, traditional communities and small-scale fishers have been vindicated after the Gqeberha High Court on Thursday ruled that petroleum giant Shell’s right to seismically blast the Wild Coast was granted unlawfully.
The application to have the testing declared unlawful was premised on the contention that the survey would not only be harmful but would be unlawful given that Shell does not have an environmental authorisation to conduct the exploration right in terms of National Environmental Management Act.
Applicants in the matter also contended that they had not been consulted prior to the decision granting the exploration right and that the survey would cause harm to the environment and their livelihoods, culture and heritage.
In his judgement, Judge Selby Mbenenge said: “For their contention that the anticipated harm to marine and bird life is a fundamental consideration, the applicants rely on the evidence of experts.
“The experts are in agreement that there is a reasonable apprehension of harm to marine and bird life and that the mitigation measures proposed by Shell and Impact do not adequately manage the threat of harm. The applicants' experts emphasise the need for evidence ruling out a significant risk of harm before the seismic survey may be conducted.”
The respondents relied on experts to refute the suggestion of possible harm to marine and bird life.
“They suggest that the detrimental effect of seismic surveys are not known and that, in so far as there is a possibility of death or stranding of marine animals from exposure to sound from seismic surveys, there are appropriate mitigating and monitoring measures in place ... “The court is satisfied that the review grounds meet the threshold. “It is demonstrably clear that the decisions were not preceded by a fair procedure; the decision-maker failed to take relevant considerations into account and to comply with the relevant legal prescripts.
“Therefore, the decision granting the exploration right falls to be reviewed under section 6(2) of PAJA and the principle of legality,” said Judge Mbenenge.
Shell spokesperson, Pam Ntaka, said they were reviewing the decision. “We respect the court’s decision and are reviewing the judgement to determine our next steps,” said Ntaka.
The Department of Mineral Resources and Energy (DMRE) said it noted the judgment reviewing and setting aside decisions to grant and renew an exploration right to Impact Africa Limited.
“The Department is studying the judgment and will respond appropriately once it has taken advice from its legal representatives.”
Main applicant, Sustaining the Wild Coast (SWC’s) Sinegugu Zukulu, said: “Unlike other coastal stretches in South Africa, indigenous communities have maintained continuous possession of this land, despite waves of colonial and apartheid dispossession. Our ancestors' blood was spilt protecting our land and sea. We now feel a sense of duty to protect our land and sea for future generations, as well as for the benefit of the planet.”
SWC chairperson, Margie Pretorius said the successful resistance of Wild Coast communities to the pursuit of profits by Shell and government in the face of climate change and environmental collapse is a step in the right direction.
Eco-justice organisation and party to the matter, The Green Connection, welcomed the judgment.
“It has been a tense road for the small-scale fishers who took Shell to court, back in December 2021, in a bid to stop a marine seismic survey offshore of the Wild Coast (Eastern Cape). Since first hearing about the imminent arrival of Shell’s seismic testing vessel the Amazon Warrior at Cape Town harbour a month before and snowballing into a national outcry, this issue finally comes to a head, in a historic moment for civil society, small-scale fishers in particular…
“(We) believe that due to the negative environmental impacts of offshore seismic surveys and the climate crisis, we should halt all oil and gas exploration and that we should protect our oceans and support those communities whose livelihoods depend on a healthy ocean,” said the Green Connection.
Cape Times
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