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Shell Unlawful ?

As Justice Gerald Bloem deliberates on the issue of irreparable harm, a shoreline of conclusions – thousands of krill and fish, a shark, ray, penguin and dolphins – wash up dead or confused on the Wild Coast. All coincidental to Shell’s ongoing seismic survey?

Mineral Resources and Energy Minister Gwede Mantashe threw his hat into the ring announcing he will oppose the fishers and Amadiba Traditional communities in court at the 11th hour last Friday. Mantashe labelled environmental activism opposing the promise of ‘economic development’ from the Shell seismic survey as “apartheid and colonialism of a special type”. Of course, this is divisive talk which we’ve seen before at Xolobeni, where Mantashe’s wish to split communities around the contention of jobs has been dangerous[1]

To put some context to Mantashe’s confounding statement, we must listen to Sinegugu Zukulu, speaking on behalf of Sustaining the Wild Coast (SWC) as they applied for the interdict,  
“Indigenous people, living on communally owned land occupy 20% of the earth’s land but protect 80% of the earth’s remaining biodiversity. Domestic and international law is increasingly recognising the rights of these indigenous communities but Shell’s process with regards to this survey, enabled by Minister Gwede Mantashe of Department of Mineral Resources and Energy, has not recognized these rights. Together, Shell and Gwede are behaving like the colonial and apartheid powers that came before them by not listening to the indigenous communities of the Wild Coast who have lived in harmony with the ocean for centuries and rely on it for their physical and spiritual wellbeing.”

So the minister is able to appropriate, if not consult. 

Senior Counsel Tembeka Ngcukaitobi, who argued for the Amadiba Traditional, Dwesa-Cwebe, Port St Johns and Kei Mouth communities, highlighted how Shell’s consultation was “farcical and a complete sham based on exclusion rather than inclusion” since there was no attempt to reach out to consult with the isiXhosa & isiZulu speakers who make up the majority of people living in the communities. Shell obtained the exploration right in breach of the Minerals and Petroleum Resources Development Act (MPRDA) and the National Environmental Management Act (NEMA)’s consultative obligations and therefore unconstitutionally and unlawfully.

Ngcukaitobi claimed that since Mantashe had already firmly  “nailed his colours to Shell’s mast”, and an internal appeal would have been wasted effort. 

Advocate Adrian Friedman, for Shell, argued the inconvenience of massive capital outlay of “billions” if the survey was prevented from going ahead. We must remember that those billions could become the taxpayer’s cost since there is a favourable 100% “uplift” capital expenditure provision for oil corporations which make discoveries in this country. In other words, South Africans will pay for this development the moment that gas is piped to our shores. Advocate Friedman went on to argue that harms against traditional fisher livelihoods and their spiritual heritage were speculative and “subjectively held”. For Shell and Friedman, “Ancestors taking offense to the seismic survey should not trump the commercial interests of Shell”. Friedman was also dismissive of the idea that a seismic survey 20kms offshore could affect coastline communities.

Cultural rights are protected under the Constitution, and “no amount of money can offset loss of constitutional rights” countered Advocate Ngcukaitobi SC. He took the court through pertinent science to clarify how dire consequences of this survey could be on certain marine species and community livelihoods. That Shell’s 2020 environmental audit relied on a report that was then 8 years old is counter to industry best practice and ignored mounting peer-reviewed science that show irreparable harms. Ngcukaitobi suggested Mantashe should “come and read before he makes ignorant comments”. Later Ngcukaitobi highlighted how Shell could not bring any experts, save their chairman Hloniphizwe J Mtolo, to support their arguments under oath.

Friedman and advocate Olav Ronaasen, SC, for Mantashe argued that the Environmental Management Programme report (EMPr) was an effective environmental authorisation issued under NEMA. One had to wonder whether the minister entered the fray so late in the day because his very short affidavit supports the argument of Shell on the point that he, the minister, had declared the Environmental Management Plan report to be an Environmental Authorisation. The applicants argue this sits contrary to the One Environmental Plan where the exploration rights fall under the NEMA, hence claiming that Mantashe’s conduct was illegal under both the NEMA and the MPRDA.

Screenshot from the hearing. Advocate Ngcukaitobi SC bottom left, Justice Gerald Bloem top right.

[1] See Sole, S. June 30, 2019. Xolobeni – the mine, the murder and the DG.  amaBhungane. https://www.news24.com/news24/SouthAfrica/News/amabhungane-xolobeni-the-mine-the-murder-and-the-dg-20190627

And 

Maasdorp, L. And Myelin, T. January 3, 2021. Threats and Murder won’t stop South Africa’s environmental activists. Open Democracy. https://www.opendemocracy.net/en/5050/threats-and-murder-wont-stop-south-africas-environmental-activists/


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