08 Mar Another inadequate environmental engagement – case summary.
Against the background of the Shell Saga where the Eastern Cape High Court, in December 2021, granted an interdict against a seismic survey along the Wild Coast of South Africa, another seismic survey has been halted. This time, the Western Cape High Court, on 1 March 2022, granted an interdict and stopped a seismic survey of the west and south-west coast of South Africa.
Once again, an inadequate environmental consultation process , a failure to meaningfully consult with affected communities, occurred. As with Shell (Read more about the Shell Case here) , the court made it clear that affected and interested parties must be meaningfully consulted to protect the constitutional rights of equality, culture and livelihood and that clear evidence of environmental harm cannot be disregarded.
In Part A of the application, the applicants, which included individuals and collective groups of small scale fishers, indigenous communities and environmental organisations, sought an urgent interdict against the respondents (Ministers of Mineral Resources and Energy and Environment, Forestry and Fisheries as well as Searcher Geodata UK Limited, Searcher Seismic (Australia) and the vessel BGP Pioneer) to prevent them from conducting a seismic surveying along South Africa’s west coast in terms of a reconnaissance permit issued under the Mineral and Petroleum Resources Development Act (MPRDA).
Part B of the application dealt with the question of whether the parties conducting the seismic blasting required environmental authorisation under the National Environmental Management Act (NEMA) which they did not have.
Thulare J criticised the respondent’s environmental consultation process, and specifically, the consultant contracted by the respondents to conduct the public participation mandated by the National Environmental Management Act. The process failed to meaningfully consult with interested and affected parties, including small scale fishers. Thulare J heavily criticised the fact that the participation process prejudiced those who were illiterate and poor, not English or Afrikaans speakers, and who did not have adequate access to technological devices. Further, the process also favoured the commercial fishing sector over the subsistence of small scale fishers who were not deemed “worthy” of consultation.
The court, in considering an apprehension of irreparable harm – the interdict requirement – held that seismic surveys have been directly linked to physical, physiological and behavioural damage to marine biodiversity. Thulare J stated that the failure to consult affected fishers prejudiced the applicants’ rights to equality, food, livelihood and culture.
The court found that the requirements for an interdict had been established and stopped the seismic survey. This is pending the outcome of an internal appeal under the MPRDA and the outcome of Part B of the application.
The respondents argued that the Constitution should not be read as pitting development against the environment and that it rather contemplates an integration of environmental protection and socio-economic development – “it envisages that environmental considerations will be balanced with socio-economic considerations through the ideal of sustainable development.” The Court was not persuaded. This decision and the decision in Shell demonstrates a consistent approach by the courts, requiring parties – private and public – to do better and do more in their engagement with people affected by the activity. Parties need to ensure that expert advice is obtained to determine the level of compliance required and what is required to implement this compliance, practically, in the specific circumstances of their project.