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Countrywide protests support Wild Coast community’s case against Shell in Supreme Court of Appeal

Countrywide protests support Wild Coast community’s case against Shell in Supreme Court of Appeal
Generavl view during the March with us to Stop Shell at North Beach on December 11, 2021 in Durban, South Africa. Its beleived that Shell is commissioning a 3D Seismic Survey along the West Coast, and this seismic survey has sparked public outrage from the public and environmentalists who cite that seismic surveys have negative impact on marine life. (Photo: Gallo Images / Darren Stewart)
Estelle Ellis
By Estelle Ellis
19 May 2024
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Communities along the Wild Coast are arguing that their case is about ensuring ‘profit-making does not override human rights’. They are challenging a bid by oil and petroleum Shell and others to overturn an interdict on seismic surveys in the area.

A call for help from Wild Coast communities who are defending a court order stopping a seismic survey off their pristine coast sparked countrywide peaceful protests on Friday, 17 May. 

As protests were held in Johannesburg, KwaZulu-Natal and the Eastern Cape, several members of affected communities were in attendance at the Supreme Court of Appeal (SCA) in Bloemfontein on Friday, where Shell and its survey partner, Impact, asked the court to overturn an interdict that will allow for the seismic surveys off the Wild Coast to continue.

“This case is about making sure that profit-making does not override human rights,” Nonhle Mbuthuma from the Amadiba Crisis Committee said. “It is not about Shell.” 

The Amadiba Crisis Committee was one of several Wild Coast organisations and communities supporting a call to the SCA to keep in place an interdict that stopped seismic surveys in the area.

In a written argument before the court, the Wild Coast communities’ counsel, Tembeka Ngcukaitobi SC, Emma Webber and Nikki Stein, argue that the decision by the Makhanda High Court to set aside the permission granted to Impact and Shell for the seismic survey off the Wild Coast must be upheld.

The Legal Resources Centre and Richard Spoor Inc represented the Wild Coast organisations before the Supreme Court of Appeal.

Read more in Daily Maverick: Global honour for coastal guardians who told Shell to go to hell

The planned survey would have occurred in 2022 along the coastline from Port St Johns to Morgan Bay.

“Despite the potentially devastating impact that the seismic blasting will have, Impact [which was tasked with carrying out the testing] and Shell did not obtain an environmental authorisation under the National Environmental Management Act to commence the seismic blasting; or adequately consult (or consult at all) with affected communities when Impact obtained its exploration right over eight years ago,” the legal team says in their written argument.

“When assessing and granting the exploration right to Impact, the Department of Mineral Resources and Energy (“the Department”) failed to take into account several critical considerations – including the impact that the seismic blasting would have on the livelihoods of affected communities, on the spiritual and cultural practices of such communities and the cumulative impact of all seismic blasting along the East Coast. 

“These omissions rendered the grant of the Exploration Right and Shell’s seismic blasting unlawful and invalid,” their written argument continues.

The Amadiba Crisis Committee, based in Xolobeni on the Wild Coast, called for countrywide protests to support their plight. 

“Shell has never talked to us or any other coastal community about it. This is also a part of the court case. The interdict has been appealed by Shell Petroleum and the Department of Mineral Resources and Energy. We hope their appeal will be defeated in the SCA,” Mbuthuma said.

Members of Masifundise, a collective of artisanal fishing communities in South Africa, supported the Amadiba Crisis Committee at court.

Wild Coast Shell A protester at North Beach in Durban on 11 December 2021 where locals gathered to demonstrate against a 3D seismic survey, commissioned by Shell, along the West Coast. (Photo: Gallo Images / Darren Stewart)



Ntsindiso Nongcavu, from the Port St Johns area and chairperson of Coastal Links Eastern Cape, said: “I live in Sicambeni Village, which is a coastal community. In my community, fishing is a major part of our livelihoods and we stand against oil and gas exploration in the ocean as it will negatively impact us. Exploration or drilling for oil or gas would cause great disturbances in the ocean and therefore, also to our cultural practices. 

“We believe that our forefathers’ spirit rests in the ocean; hence, when there are rituals, we ought to perform them in the ocean as part of our tradition. We depend on the natural resources in the ocean for our livelihoods. We catch fish to sell and to provide for our families.” 

Jomo Kuselo, from Hobeni Village in the Eastern Cape, agreed: “Oil and gas exploration would harm us. We were never consulted about this development. When we researched more about this, we learnt about how the impact of this development could destroy nature and the ocean.  Minister [of Forestry, Fisheries and the Environment] Barbara Creecy never considered our spiritual and cultural practices and how oil and gas exploration could affect this.”

The Cry of the Xcluded and the Botshabelo Unemployed Movement also supported the fishing communities. 

“We will be picketing with fishing communities whose lives are in immediate peril due to the health of our oceans and waterways. These communities are facing a formidable adversary in their urgent quest for justice. Shell’s actions will jeopardise the delicate ecosystems upon which these communities depend and undermine their fundamental rights to a clean and healthy environment,” the two groups said in a joint statement.

Read more in Daily Maverick: Coastal communities on the frontline of the climate crisis — Dwesa-Cwebe in Hobeni, Eastern Cape

In an affidavit before the court, the Amadiba Crisis Committee’s Reinform Zukulu, who lives in Baleni Village along the Wild Coast, said: “The Wild Coast is a place of stunning natural beauty. Unlike other coastal stretches in South Africa, indigenous people have maintained continuous possession of this land despite waves of colonial and apartheid aggression. This is no accident. 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. Our land and sea are central to our livelihoods and our way of life. Over generations, we have conserved them, and they have conserved us. This is not merely a matter of nutrition and income, though it certainly is that. 

“Some of our ancestors reside in the sea, and our traditional healers and pastors use the sea to heal us and to connect us with God. We believed that our Constitution would enshrine the rights our ancestors died to secure so that we would not have to make such sacrifices,” he said.

Read more in Daily Maverick: Are environmental NGOs anti-development, as Gwede Mantashe claims? Wessa responds

“Multinational corporations now wish to blast our sea every 10 seconds for five months with air gun bursts between 220 and 250 decibels – louder than a jet plane taking off – that will be heard underwater more than 100km away. They want to do this for one reason – to look for oil and gas that they can profit from while worsening the planet’s climate crisis,” his affidavit continued.

The organisations opposing the appeal by Shell, Impact, the Minister of Mineral Resources and Energy, the Minister of Forestry, Fisheries and the Environment and other parties are: Sustaining the Wild Coast NPC; Dwesa-Cebe Communal Property Association; three small-scale fishers from Port St Johns and Kei Mouth; community members from Xolobeni; and All Rise Attorneys.

They further argued that the SCA should rule that the High Court should also have ordered an environmental authorisation for the permit to be awarded.

The legal team for Shell, Impact and the ministers argued that the Wild Coast community delayed legally reviewing the decision. They asked the court to rule that material irregularities did not impair the government’s decision to grant the exploration right and should not have been set aside. 

They argue that the public had been properly notified of the decision to grant the exploration right, and that the court should not have allowed the decision to be challenged so long after it was made. 

They also argue that the court was wrong to deal with exploration as a step in a single process that culminates in the production and combustion of oil and gas. They added that the judge was wrong in applying the precautionary principle to the expert evidence on the harms of seismic surveys. The precautionary principle requires three authorities when it comes to giving expert evidence.

Shell also argues that the court was wrong to conclude that public statements made by the Minister of Mineral Resources and Energy gave rise to a reasonable apprehension of bias and, as such, lodging an internal appeal would have been an exercise in futility.

The court has reserved judgment. DM

https://www.youtube.com/watch?v=REeWvTRUpMk

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