Seismic shock: Talk to the people first, Shell

In a truly David and Goliath battle Wild Coast communities have scored a “massive victory” against Shell, stopping the oil giant’s seismic survey in its tracks as the devastation of its recent oceanic activities is already showing with dead fish washing up on beaches.

Shell lost the second round of the legal battle as Judge Gerald Bloem yesterday in the High Court in Makhanda issued an urgent interdict against the company, declaring its exploration right unlawful and invalid as it was awarded through a flawed process.

Reports of dead fish on beaches where the survey has started surfaced yesterday during a talk show on Radio 702.

Researcher Alex Lenferna tweeted a picture of a dead dolphin saying: “We found a dead dolphin washed up in Chintsha along the Wild Coast where the blasting is happening.”

About 20kg of Black Steenbras also washed up on Tshani beach “dead with protruding nostrils, blown out by the blasts”, another Twitter user, Toni Tew, wrote in a caption for a picture.

“The Makhanda High Court reminded the state and Shell today, once again, that the indigenous rights of communities are protected by the constitution from interference, no matter how powerful the intruders are,” said Legal Resources Centre’s Wilmien Wicomb, one of the attorneys representing the communities.

“The case is not just about Shell – it is about both protecting human rights and animal rights, which are both enshrined in the constitution. As coastal communities we have relied on the sea for centuries,” Amadiba Crisis Committee’s Nonhle Mbuthuma said after the landmark judgment.

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Non-profit organisation Sustaining the Wild Coast’s Sinegugu Zulu said the interdict was a reminder that constitutional rights “belong to the people and not to government”.

“The only way that we can assure that the rights of indigenous people are living – and not just written on paper – is if we challenge government decisions that disregard these rights.”

Judge Bloem found that Shell, which had a duty to meaningfully consult with the communities, had failed to do so. The communities taking on the company include those from Umgungundlovu, Port St Johns, Kei Mouth and Dwesa-Cweba.

As contained in sections 24, 30 and 31 of the constitution, the applicants hold customary rights,which include fishing rights, as well as deep spiritual and cultural connections to the ocean.

These issues were not addressed in Shell’s answering affidavit. Consultation with these communities was found by the judge to be a prima facie right deserving of protection by an interdict.

Bloem found the applicants’ evidence regarding the irreparable threat of harm to marine life as a result of conducting the survey to be satisfactory. Department of Minerals and Energy Minister Gwede Mantashe and Shell were thus ordered to pay applicants’ costs.

For now, the survey cannot continue, until Part B of the application, dealing with whether Shell requires environmental authorisation obtained under the National Environmental Management Act, has been determined by a court.

The interdict was a culmination of the struggle Wild Coast communities have to get recognition of their “customary rights to land and fishing”, said Wicomb. Amadiba Crisis Committee’s Siyabonga Ndovela said the interdict was a victory for all South Africans. “A decision against Shell is a decision to protect the ocean – which is ourselves.”

nicas@citizen.co.za