The Amazon Site: Meaningful community engagement again at the core of an interdict – (case no 12994/21)

Background

On 18 March 2022, the Western Cape High Court granted an interdict against a R4.5 billion Amazon development pending a review of the environmental land use authorisations. 

Construction of the development which commenced in July 2021 on a historically and culturally significant floodplain at the River Club site in Observatory was stopped. The Court found that the developers must first “meaningfully consult’” with affected parties. The development is situated where the Liesbeek and Black rivers join and will include Amazon’s regional headquarters, envisioned to be ‘a large-scale urban campus.’

The Observatory Civic Association (OCA) and Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC ) approached the court for the interdict. The Respondents included the trustees of the Liesbeek Leisure Properties Trust, provincial and local government and the Western Cape First Nations Collective.

The site is part of the broader Two Rivers Urban Park (TRUP) area and was the territory of the Gorinhaiqua. The applicants argued that the site is the only undeveloped remnant of the grazing lands used in the summer by the Khoekhoe for their cattle and that significant ceremonies and gatherings have taken place on the site. This makes such sites “holders of memory”. Before environmental authorisation was issued in August 2020, the Western Cape provincial government commissioned a heritage study, which found that the TRUP site was of historic and symbolic value. Any development of the site, necessitated consultation with the First Nations Group (FNG) as affected parties. The Western Cape Department of Public Works appointed the AFMAS Solutions Group to consult with FNG and to report on the local spatial development framework for TRUP.

Subsequently, there was disagreement between groups in the FNG, which split the group. The grouping against the development was established under the umbrella of First Nations Collective – those opposed included the GKKITC. The latter grouping terminated all engagement with AFMAS Solutions Group and the commissioner of the GKKITC testified before the court that those opposing the development were ‘vilified’ and ‘abused’ and that the consultant had a conflict of interest and downplayed the cultural significance of the site.

There were further consultations under the direction of Heritage Western Cape. These consultations concluded in a report and there were multiple phases for public comment, which overwhelmingly opposed to the development. 

Subsequently, Heritage Western Cape objected to the environmental authorisation that was eventually granted. The organisation indicated concern with the AFMAS report, specifically, the ‘ethics of engagement’.

Key Points

The developers argued that:

  • there had been meaningful consultation and public participation;
  • the community’s cultural aspirations were duly considered;
  • the development would include an indigenous garden with medicinal plants, a heritage eco-trail and a cultural and heritage media center;
  • more than 60% of the development would be open space;
  • the Liesbeek Canal was to be rehabilitated; and 
  • large areas of the site would also be accessible to the public. 

The respondents denied that the consultation process favoured the First Nations Collective. The respondents further argued that delays in development will lead to job losses, and it could render the entire project unviable. The City of Cape Town argued that the interdict would hamper the only viable opportunity to protect and celebrate heritage resources on the site and that the economic benefits of the development would be substantial and that the applicants were given adequate opportunity to veto the development.

The Decision

Goliath J ruled that the fundamental right to culture and heritage of indigenous groups such as the Khoi and San First Nations People was under threat as they had not been properly consulted. Goliath J confirmed that ‘The order of this court must not be construed as a criticism against the development [… ] The core consideration is the issue of proper and meaningful consultation with all affected First Nations Peoples’. 

She further stated that the ‘fact that the development has substantial economic, infrastructural and public benefits can never override the fundamental rights of First Nations Peoples’.

A noteworthy point is that Goliath J found that the AFMAS report described the Goringhaicona in derogatory language, ‘drifters and outcasts’, while describing those in favour of the development as ‘the traditional custodians of the historic landscape.’

Goliath J noted that ‘I am mindful of the developers’ contention that their consultants made considerable efforts to engage with First Nations Groupings. However, in my view, [the consultant] was conflicted and his position as an objective and trusted expert to facilitate meaningful consultations with those opposed to the development was compromised.’ 

With regards to the significance of the site, the Court noted that the First Nations Peoples have a deep and sacred linkage to the development site ‘through lineage, oral history, past history and narratives, indigenous knowledge systems, living heritage and collective memory.’ The TURP site is therefore central to the tangible and intangible cultural heritage of the First Nations Peoples.

Consequently, the Court found that the AFMAS report was tainted and that all affected parties were not meaningfully consulted. Some were excluded and ‘may suffer irreparable harm’ if construction were to continue. 

Analysis

As with the Shell-case and the West-Coast seismic survey, the most important issue before the Court was meaningful engagement with affected parties. In this case, it was not enough that some of those affected were in favour of the development. The Court made it clear that all voices should be heard in the community consultation process in an effort to protect the constitutionally protected rights of indigenous groups.