Wild Coast blasting rights ‘were granted after farcical consultation’

Full bench sits to review application to set aside permission for Shell’s seismic exploration

Shell’s exploration right allowing it to seismically blast the ecologically sensitive Wild Coast was granted in the face of farcical consultation with affected rural communities, and no regard for the principle of sustainable development or the devastating environmental harm it would cause.

These were some of the submissions made in the Gqeberha high court on Monday where environmental groups, community groups and fisherfolk are asking for the government’s 2014 decision to grant the exploration right — as well as the subsequent 2017 and 2020 decisions to renew it — be reviewed and set aside.

The mammoth case involves nine applicants and dozens of the country’s top lawyers.

It has been set down to be argued over three days before a full bench, consisting of Eastern Cape judge president Selby Mbenenge, deputy judge president Zamani Nhlangulela and judge Thandi Norman.

Counsel representing Pondoland communities in the landmark Wild Coast seismic exploration case in the high court in Gqeberha yesterday, led by advocate Tembeka Ngcukaitobi, SC, said the petroleum company’s efforts to carry out the key requirement of consultation were “a farce”.

Ngcukaitobi said the residents of Xolobeni and other parts of the rural northeast coast of the Eastern Cape knew nothing about the project or the exploration right, which was first granted to Impact Africa in 2014 by mineral resources & energy minister Gwede Mantashe.

This remained the status quo even when it was renewed in 2017. They did not become aware of it until 2021, after the right had been transferred in part to Shell and then renewed for the second time by the minister, triggering a wave of media reports.

He said this situation was unacceptable in terms of SA environmental law and the constitution.

“There were no face-to-face meetings, no effort to consider the reality that a large number of these villagers are illiterate.

“There was no effort to meet the fundamental aspect of consultation. which is ‘to make known’.

“The project consultant met the chiefs at one point and they were advised because of the technical nature of the matter they should speak directly to the people but this was ignored.”

He said even with the illiteracy factor the developer was obliged to place information notices in a public, easily accessible place.

“Instead they were placed only in four provincial and national newspapers, including The Herald and Daily Dispatch, which are not seen in these villages.

“The notices furthermore were only in English and Afrikaans while many Pondoland residents are conversant only in Xhosa.

“Those who could understand were left wondering ‘how will it affect my village?’

“But there was no detail on that. It spoke only of the Transkei/ Algoa area, which told them nothing. It was vast, vague and technical.

“It said nothing about blasting that could scare away the fish. It told them nothing.”

He said with no newspaper circulating where residents needed to be consulted, the applicant company was obliged to make another plan.

“The law says the applicant must make known by a means accessible to the public.

“If they had done so through radio then that would have been okay, but you cannot hide behind the cover of a newspaper that does not sell in the villages you are trying to communicate with.

“And there is no evidence that Shell tried to follow up to check on this matter.

“If the science on the [environmental] impact [of seismic surveying] is not yet clear, [he should’ve] taken the precautionary approach and erred on the side of caution.”

Ngcukaitobi mocked Mantashe’s “top down” approach when it came to economic development.

It had been admitted that the surveying would create zero local jobs as it required imported, specialised skills.

“So the negative impacts are not even offset by any benefits. How is it rational for the minister — especially one who accused my clients [the communities] of being ‘colonialists of a special type ’— to ignore the fact that they [Shell] are causing harm for no benefit?”

Ngcukaitobi was referring to Mantashe’s suggestion last year that the Wild Coast communities challenging Shell’s seismic survey had a colonial and racist agenda.

Last December the Makhanda high court interdicted the seismic exploration, with an order set to remain in place pending the outcome of this application in the Gqeberha high court.

Civil society organisations, as well as communities from Dwesa-cwebe, Port St Johns and Amadiba, marched in protest against the seismic blasting.

Sporting placards like “Jobs for who? Fishing is the job we want!” and “We can’t eat oil”, the protesters converged on the Gqeberha court on Monday.

Central to the environmental activists’ argument is that Shell did not have proper authorisation under the National Environmental Management Act (Nema) to proceed with the exploration, which close to a dozen marine experts have said is harmful to the marine environment. Both Shell and Mantashe are arguing that an Environmental Management Programme (EMPR) submitted in 2014 and updated and revised in 2020, was more than adequate.

Advocate Nick Ferreira for Natural Justice and Greenpeace argued that in granting the exploration licence the government had used a “tick-box exercise” that ignored the statutory requirements of Nema and the Integrated Coastal Management Act.

It had also ignored the climate change impact its decision would have.

Advocate Jeremy Gauntlett for Impact Africa said the matter was highly complex and it should not have been brought to court. “The courts have firmly instructed us that matters should not come before them unfiltered.

“So the life cycles of fish and the consequences of seismic testing should be taken to where they belong.

“The technocrats should be engaging with them.”

He said the minister’s statement that the applicants were victims of environmental colonialism and other angry remarks should not be used to construe that the concerns could not have been objectively settled.

“He’s mad as a hive of bees now but don’t argue backwards from this current situation to the possibility for engagement that existed before.”

Argument continues on Tuesday.

He ’ s mad as a hive of bees now but don ’ t argue backwards from this current situation to the possibility for engagement that existed before