6 December 2021
Round two in the fight against Shell’s Seismic survey in the ocean off the Wild Coast is set to be heard on 14 December when local community groups will argue that it is not only their livelihoods at stake but, through their ancestors who “reside” at sea, their relationships with God.
“The Wild Coast is a place of stunning natural beauty … indigenous people have maintained continued possession of this land, despite waves of colonial and apartheid aggression. Our ancestors’ blood was spilt protecting our land and sea and we now feel a sense of duty to protect it for future generations.”
So argues Reinford Sinegugu Zukulu, director of Sustaining the Wild Coast, a non-profit organisation, in the latest legal salvo for an interdict to stop the planned, five-month, air gun barrage by Shell in its oil and gas exploration campaign.
Zukulu, local traditional healer Mashona Wetu Dlamini, the Dwesa-Cwebe communal property association, representatives of local fishers and All Rise Attorneys for Climate and the Environment — represented by the Legal Resources Centre and attorney Richard Spoor — will argue their case for an urgent interdict before Makanda high court Acting Judge Avinash Govindjee.
Last week the same judge dismissed a similar urgent application launched by four environmental and human rights organisations.
The judge ruled that submissions by the organisations about the detrimental impact on the environment and marine life were “speculative at best” and they had not proved a reasonable apprehension of irreparable harm.
But the local communities are not deterred by this.
They ground their legal argument on two facts: Firstly, they say, they were not consulted; and secondly, they say, Shell does not have environmental authorisation under the National Environment Management Act (NEMA).
Zukulu, in his affidavit, says that the views of the local community have been completely disregarded by Shell.
“Our land and seas are central to our livelihoods and our way of life,” he says.
But this is not only about earning a living: “Some of our ancestors reside in the sea and our traditional healers and pastors use the sea to heal us and connect us to God.”
He said the air gun bursts, which would be blasted into the sea every ten seconds for five months, would be “louder than a jet plane taking off” and would be heard underwater more than 100 km away.
Zukulu said Shell had obtained its licence under the Mineral and Petroleum Resource (MPRDA) Development Act eight years ago without any meaningful engagement.
The local communities had only learnt of the seismic survey plan in early November.
“They are now rushing to blast our seas without any authorisation under (the much stricter conditions) of NEMA and on one month’s notice.
“Their conduct is literally criminal.”
He said the resultant public outcry, with 379,000 people signing an (online) petition and a further 37,000 people registering objections on an online public participation mechanism, was indicative that Shell had not been transparent or consulted properly.
He said Shell’s Environmental Management Programme (EMPr) was lacking.
“There is no discussion about traditional healing, or cultural and spiritual issues relating to the sea … the only heritage concerns mentioned relate to shipwrecks.”
He said the EMPr also only referred to the risk to marine mammals as being “challenging to assess”.
The application was supported by two marine experts, Dr Simon Elwen and Dr Tess Girdley, who said the EMPr had significant gaps regarding the impact of seismic surveys on marine life.
They also argue that numerous studies have been published since the approval was given that better explain the harm that will result from the survey.
“All of this underscores the need for a NEMA environmental authorisation process before any seismic survey may occur,” Zukulu said.
Shell is expected to file its opposing papers this week.
In the previous matter, the company argued that seismic surveys were “standard practice” in South Africa and all over the world and there was little chance of harm to marine life when proper mitigation processes were applied.
Shell said on the Wild Coast it would apply a five kilometre buffer zone around marine protected areas even though the law only required a two kilometre zone.
There would also be 24-hour acoustic monitoring and independent marine mammal observers would conduct visual inspections.