Ocean activists and small-scale fishers protested outside the Western Cape High Court on Monday over proposed offshore oil and gas exploration along South Africa’s West Coast.
Image: Armand Hough / Independent Newspapers
Judgment has been reserved in the Western Cape High Court in the mammoth environmental battle launched by applicants Aukotowa Fisheries Primary Co-operative Limited, The Green Connection NPC and Natural Justice.
The applicants brought their case to the high court to challenge the environmental authorisation granted to Total Energies for ultra-deep-water oil and gas drilling in the Deep Western Orange Basin (DWOB), located roughly 200 kilometres off the West Coast of South Africa.
They are taking on the decisions of the Director-General (DG) of the Department of Mineral and Petroleum Resources, the Minister of Forestry, Fisheries and the Environment and Total Energies EP South Africa (TEEPSA) and argue that “there are predictable, long-term ecological impacts that go along with petroleum projects”.
At its core, this litigation argues that the approval process was fatally flawed, irrational, and inconsistent with the Constitution, the National Environmental Management Act (NEMA), and South Africa’s climate and energy obligations.
The litigation includes arguments that fishing communities and the impact of exploration on their livelihoods. They submit that the interests of a corporation are clearly prioritised above the rights of people living on the coastline.
The applicants have sought an order reviewing and setting aside both the Director-General’s decision to grant the environmental authorisation and the Minister’s decision to dismiss the applicant's appeals.
“Because the flaws in the need and desirability and oil spill risk assessments are so fundamental to the project's viability, we are asking the Court to take the rare step of a substitution order. This means that instead of sending the matter back to the Department of Mineral and Petroleum Resources to try again, the Court should itself issue an order refusing the authorisation. This is necessary to ensure that the environment and the rights of the fishers are protected from further unlawful administrative processes,” the applicants argued.
In their heads of argument the applicants further submitted that it is common cause that a major oil spill resulting from a “well blow-out” is the most significant risk arising from the exploration activities, and that this occurrence could correctly be described as “catastrophic”.
On Wednesday, Advocate Chris Loxton for TEEPSA chipped away at the applicants' arguments in which he submitted that a distinction between exploration and production were made out in provisions of the National Environmental Management Act (NEMA) and the National Environmental Management: Integrated Coastal Management Act (ICMA) and in that regard, there was compliance.
Adv Loxton submitted that by them complying with NEMA, the eventuality was that they complied with ICMA.
“The Applicants have not shown that there is any requirement of ICMA which was not in the course of complying with NEMA. They have not said, for example, that you were supposed have done X and the consequence is Y,” said Loxton.
Cape Times