Shell has been forced to halt a controversial offshore seismic survey after a South African court issued an interim indictment against the operation on environmental and constitutional grounds.

Successful appeal

The appeal ruling by Judge Gerald Bloem at Makhanda High Court on 28 December ordered Shell and South Africa’s Energy Minister Gwede Mantashe to pay the applicants’ legal costs, jointly and severally.

Bloem’s ruling reversed a decision made almost four weeks ago at the same court that found no reason to stop the 3D seismic shoot and ordered the applicants — who appealed — to pay the legal costs of Shell and Mantashe.

"Apartheid and colonialism"

Mantashe has been vociferous in his support of the survey and the upstream industry in general, stating at a 9 December media briefing: “We consider the objections to (oil and gas developments) as apartheid and colonialism of a special type, masqueraded as a great interest for environmental protection.”

A date for a full court hearing on the stalled 3D survey and its environmental impacts had not been set as Upstream went to press.

Wild Coast survey

Under South Africa’s environmental approval process, Shell was given the go-ahead by the government to acquire up to 6000 square kilometres of 3D seismic data over its Transkei-Algoa acreage offshore the Wild Coast and Algoa Bay.

Shearwater's Amazon Warrior vessel had been ready to start the survey in November before local anti-fossil fuel campaigners asked Makhanda court to stop the operation.

After the campaigners’ legal bid failed, Shell started the survey before bringing the vessel back to port after last month's interim indictment.

Shell respects decision

“We respect the court’s decision and have suspended the survey while we review the judgement,” said a Shell spokesperson, highlighting that “surveys of this nature have been conducted for over 50 years with more than 15 years of extensive peer-reviewed scientific research.”

The spokesperson said: “South Africa is highly reliant on energy imports for many of its energy needs,” adding: “If viable resources were to be found offshore, this could significantly contribute to the country’s energy security and the government’s economic development programmes.”

The case was brought to the Eastern Cape High Court by Johannesburg-based Legal Resources Centre (LRC) and Richard Spoor Attorneys, on behalf of the Amadiba, Cwebe, Hobeni, Port St Johns and Kei Mouth communities.

No meaningful consultation

According to LRC, Judge Bloem said Shell had failed to meaningfully consult with communities and individuals who would be impacted by the seismic survey, including those who hold customary rights, such as fishing rights.

The ruling, said LRC, also found that the exploration right — originally issued to Impact Oil & Gas — was awarded “on the basis of a substantially flawed consultation process and is thus unlawful and invalid.”

Irreparable harm

The applicants believe the process of gathering seismic data could do “irreparable harm” to marine life, a view Judge Bloem said is “reasonable” and warranted further investigation.

The applicants also claimed that the survey would cause “cultural and spiritual harm”.

Huge significance

Commenting in the indictment, LRC lawyer Wilmien Wicomb said: “The case has huge significance in that it shows that no matter how big a company is, it ignores local communities at its peril."

She said the 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."

Constitutional rights

“The Amadiba and Dwesa-Cwebe communities fought for such recognition in earlier cases and the Makhanda High Court reminded the state and Shell, once again, that the indigenous rights of communities are protected by the constitution from interference, no matter how powerful the intruders are,” stressed Wicomb.

Sinegugu Zukulu, programme manager at Sustaining the Wild Coast — one of the applicants — said the case is a reminder that “constitutional rights belong to the people and not to the government”.

Indigenous rights

“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,” added Zukulu.

Nonhle Mbuthuma, founder of the Amadiba Crisis Committee, another applicant, and a human rights and environmental campaigner, pointed out that: “The case is not just about Shell — it is about both protecting human rights and animal rights which are both enshrined in the constitution.”

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