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- Communities opposed to the blasting have accused Shell of failing to conduct meaningful consultation.
- The Minister of Mineral Resources and Energy, Gwede Mantashe, has been lambasted for supporting Shell.
- Shell argues that the impact of the seismic survey on marine life is speculative.
The High Court in Makhanda has reserved judgment in the application for an urgent interdict against the seismic survey conducted by Shell off the Wild Coast.
The Anglo-Dutch conglomerate has begun exploration for oil and gas off the Eastern Cape coast, in a controversial process that has been rejected by environmental groups and communities as harmful to sea life and the livelihoods of communities dependent on the ocean for fishing and cultural practices.
On Friday, their legal representative, Tembeka Ngcukaitobi, blasted the company as well as Minister of Mineral Resources and Energy Gwede Mantashe, who has come out in support of Shell, adding that the community groups he is representing were caught between two difficult situations.
“They cannot go to the regulator because the regulator is sleeping in the same bed as Shell. The idea that there is another way of resolving this is not borne out of the facts. The only way to resolve this is to come to court and obtain an interdict,” said Ngcukaitobi.
After a full day of hearing arguments, Judge Gerald Bloem said he will “take time to consider the submissions made” before coming up with the ruling.
Ngcukaitobi, who is representing a group of organisations and individuals opposed to Shell’s exploration had sought to demonstrate that the action would have a devastating impact on the livelihoods of communities dotting the picturesque coast and threaten the marine life.
He argued that the petroleum conglomerate had not secured environmental authorisation under the National Environmental Management Act (NEMA) and only relied on an Environmental Management Programme (EMPr) that was submitted and approved as part of an application for an exploration right.
However, Shell’s legal representative, Adrian Friedman, put it to the court that the EMPr was in fact an environmental authorisation under the National Environmental Management Act.
In his representation, Ngcukaitobi who is representing seven applicants, including the All Rise Attorneys for Climate and Environmental Justice, stated that Shell does not have an environmental authorisation and that they were under an obligation to obtain it but failed to do so.
At the centre of his argument was the company’s failure to consult with the affected rural communities in the Eastern Cape, who are set to be most affected by the seismic blasting that has seen major Eastern Cape fuel supplier, Express Petroleum, cut its ties with the company.
“The consultation carried out by Shell was inadequate,” said Ngcukaitobi.
He stated that the company only chose to consult with monarchs, rather than the communities themselves and also “failed to adequately notify affected, traditional, rural communities, particularly the fishing communities”.
“The consultation was a complete sham, based on exclusion and not inclusion,” the court heard.
The blasting on the east coast threatens the marine wildlife and fish, in a region where fishing is an integral source of income and sustenance for rural communities living along the pristine coastline.
However, Friedman argued that the harm to marine life as a result of the seismic survey was “speculative at best” as there was no evidence of irreparable harm to sea life.
“The harm that is relied upon by the applicants is speculative at best and has not been established comprehensively. It might be shown in some studies that fish move away from the site on a temporary basis because they don’t like the noise. What we show is that there is no evidence of a permanent depletion of fishing stocks.”
In his argument, Ngcukaitobi also took a swipe at Mantashe for throwing his weight behind Shell.
“Minister Mantashe has been unequivocal that he supports Shell.”
“The language he has used has been rather unfortunate. He has accused the communities that I represent of engaging in apartheid and colonialism of a special type which masquerades as environmental protection.
“It is either because he is totally ignorant of who my clients are, or totally ignorant about what their concerns that he can brandish them as engaged in apartheid and colonialism of a special type,” said Ngcukaitobi.
He added that such defence of the company was a “grave insult.”
According to the applicants, Shell began its undersea blasting on 8 December 2021, which is said to take between 110 and 140 days.
An earlier application for an interdict was dismissed by the Makhanda High Court this month, with Acting Judge Avinash Govindjee ruling that the detrimental impact of the survey on the environment and marine life were “speculative at best” and the applicants had not proved a reasonable apprehension of irreparable harm.
The applicants then returned with a fresh bid which they had bolstered with expert affidavits.